EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
on July 23, 2003, effective as of June 15, 2003 (hereinafter defined), by and
between Empire Financial Holding Company, a Florida corporation (the "Company"),
and Xxxxxx X. Xxxxxxxxx Xx. (the "Executive").
RECITALS
A. The Executive is currently employed as an executive of the Company.
B. The Executive possesses intimate knowledge of the business and
affairs of the Company, its policies, methods and personnel.
C. The Board of Directors of the Company (the "Board") recognizes and
desires to assure the Company of the Executive's continued employment in an
executive capacity and to compensate the Executive therefor.
D. The Executive is willing to continue to make his services available
to the Company, on the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
1. Employment.
1.1 EMPLOYMENT AND TERM. The Company hereby agrees to employ the
Executive and the Executive hereby agrees to serve the Company, on the terms and
conditions set forth herein, for the period commencing on June 15, 2003 and
expiring on June 14, 2006, unless sooner terminated as hereinafter set forth.
The term of this Agreement shall automatically continue after June 14, 2006,
until either the Company or the Executive provides the other party with at least
90 days prior written notice that the Agreement shall terminate effective on a
date no earlier than June 14, 2006.
1.2 DUTIES OF EXECUTIVE. The Executive shall serve as President of the
Company. During the term of Employment, the Executive shall diligently perform
all services as may be reasonably assigned to the Executive by the Chief
Executive Officer or the Board of the Company consistent with his position, and
shall exercise such power and authority as may from time to time be delegated to
the Executive by the Chief Executive Officer or the Board of the Company. The
Executive shall be required to report solely to, and shall be subject solely to
the supervision and direction of, the Chief Executive Officer and the Board of
the Company. In addition, the Executive shall regularly consult with and provide
information to the Chief Executive Officer and Board of the Company. The
Executive shall devote substantially all of the Executive's working time and
attention to the business and affairs of the Company (excluding
Company:________ Executive:________
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any vacation and sick leave to which the Executive is entitled), render such
services to the best of the Executive's ability, and use the Executive's
reasonable best efforts to promote the interests of the Company. It shall not be
a violation of this Agreement, after written notice to and approval of the Chief
Executive Officer of the Company, for the Executive to (a) serve on civic or
charitable boards or committees and (b) deliver lectures, fulfill speaking
engagements or teach at seminars, so long as none of the foregoing activities
materially interfere with the performance of the Executive's responsibilities as
an executive of the Company in accordance with this Agreement. In addition, it
shall not be a violation of this Agreement for the Executive to (a) manage his
personal investments and (b) provide brokerage services to customers of the
Executive whose accounts are maintained by the Company, so long as none of the
foregoing activities materially interfere with the performance of the
Executive's responsibilities as an executive of the Company in accordance with
this Agreement.
1.3 PLACE OF PERFORMANCE. In connection with his employment by the
Company, the Executive shall be based at the Company's principal executive
offices, except for travel reasonably necessary in connection with the Company's
business.
2. Compensation.
2.1 SALARY. Commencing as of the effective date of this Agreement, the
Executive shall receive a base salary at the annual rate of $150,000 (the "Base
Salary") during the term of this Agreement, with such Base Salary payable in
installments consistent with the Company's customary payroll schedule (as in
effect from time to time), subject to applicable withholding and other taxes.
2.2 COMMISSIONS. The Executive shall also be entitled to receive a 25%
brokerage commission for all production related to the Executive's retail
customers and a 13.5% brokerage commission for all production related to the
Executive's institutional customers. Commissions shall be determined and paid by
the Company consistent with the Company's customary commission payment policies
(as in effect from time to time), subject to applicable withholding and other
taxes. Notwithstanding the foregoing, the maximum amount of brokerage
commissions that the Executive shall be entitled to receive during any calendar
year (pro rated for partial years) shall be $150,000.
2.3 INCENTIVE COMPENSATION. The Executive shall also be entitled to
receive such other bonus payments or performance compensation, as shall be
determined from time to time by the Chief Executive Officer or the Board of the
Company, in their sole discretion.
2.4 STOCK OPTIONS: RESTRICTED STOCK.
(a) The Executive agrees promptly to take all steps necessary
or desirable to cancel stock options to purchase an aggregate of 200,000 shares
of the Company's Common Stock, $0.01 par value, granted to the Executive by the
Company prior to the effective date of this Agreement.
(b) In connection with the execution of this Agreement, the
Executive has been granted an option pursuant to the Company's Amended and
Restated 2000 Incentive
Company:________ Executive:________
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Compensation Plan (the "Incentive Plan") to purchase 200,000 authorized but
unissued shares of the Company's Common Stock, $0.01 par value (the "First
Option"), at an exercise price equal to the volume weighted average of the
Common Stock closing price for the 30 days immediately prior to June 19, 2003
(the date of the resolution authorizing the grant of these options) during which
the Company's stock was traded. The First Option shall vest immediately on the
date of grant. The First Option will expire ten years from June 19, 2003.
(c) In connection with the execution of this Agreement, the
Executive has been granted a second option pursuant to the Incentive Plan to
purchase an additional 125,000 authorized but unissued shares of the Company's
Common Stock, $0.01 par value (the "Second Option"), at a purchase price equal
to $2.00. The Second Option shall vest in three equal annual installments
commencing on June 19, 2004. The Second Option will expire ten years from the
June 19, 2003.
(d) In connection with the execution of this Agreement, the
Executive has been granted a Restricted Stock Award (as defined in the Incentive
Plan) of 100,000 authorized but unissued shares of the Company's Common Stock,
$0.01 par value (the "Restricted Award"), which shall vest in three equal annual
installments commencing on June 19, 2004, subject to such other restrictions as
are set forth in the Restricted Stock Award.
3. Expense Reimbursement and Other Benefits.
3.1 EXPENSE REIMBURSEMENT. During the term of the Executive's
employment hereunder, the Company, upon the submission of reasonable supporting
documentation by the Executive, shall reimburse the Executive for all reasonable
expenses actually paid or incurred by the Executive in the course of and
pursuant to the business of the Company, including expenses for travel and
entertainment.
3.2 INCENTIVE, SAVINGS AND RETIREMENT PLANS. During the term of this
Agreement, the Executive shall be entitled to participate in all incentive,
savings and retirement plans, practices, policies and programs applicable to
other key executives of the Company and its subsidiaries as may be in effect
from time to time.
3.3 HEALTHCARE BENEFIT PLANS. During the term of this Agreement, the
Executive shall be eligible for participation in and shall receive all benefits
under healthcare benefit plans, practices, policies and programs provided by the
Company and its subsidiaries that may be in effect from time to time (including,
without limitation, medical, prescription, dental, disability, salary
continuance, employee life, group life, accidental death and travel accident
insurance plans and programs), on terms comparable to the terms offered to other
executives of the Company.
3.4 WORKING FACILITIES. During the term of the Executive's employment
hereunder, the Company shall furnish the Executive with an office, secretarial
support and such other facilities and services suitable to his position and
adequate for the performance of the Executive's duties hereunder as reasonably
determined by the Company.
Company:________ Executive:________
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3.5 VACATION. During the term of this Agreement, the Executive shall be
entitled to paid vacation in accordance with the most favorable plans, policies,
programs and practices of the Company and its subsidiaries as in effect at any
time hereafter with respect to other key executives of the Company and its
subsidiaries; PROVIDED, HOWEVER, that in no event shall the Executive be
entitled to less than two weeks paid vacation per year.
4. Termination.
4.1 TERMINATION FOR CAUSE. Notwithstanding anything contained to the
contrary in this Agreement, this Agreement may be terminated by the Company for
Cause. As used in this Agreement, "Cause" shall only mean (i) the willful and
material failure or refusal of the Executive to perform the duties or render the
services assigned under this Agreement (except during reasonable vacation
periods or sick leave), (ii) the material breach of this Agreement, which is not
remedied within ten business days after receipt of written notice from the
Company, (iii) the indictment of the Executive for any criminal act which is a
felony, (iv) a material breach of the Executive's representation in Section 15,
which is not remedied within ten business days after receipt of written notice
from the Company or (iv) any act or omission of the Executive constituting
willful misconduct (including willful violation of the Company's policies),
gross negligence, fraud, misappropriation, embezzlement, or competitive business
activities which, as determined by the Company in its reasonable discretion,
shall cause material harm to the Company. Any determination of "Cause" for
purposes of this Agreement shall be made by the majority vote of the Board
(excluding the Executive). Upon any termination pursuant to this Section, the
Executive shall be entitled to be paid his Base Salary to the date of
termination and the Company shall have no further liability hereunder (other
than for reimbursement for reasonable business expenses incurred prior to the
date of termination).
4.2 DISABILITY. Notwithstanding anything contained in this Agreement to
the contrary, the Company, by written notice to the Executive, shall at all
times have the right to terminate this Agreement, and the Executive's employment
hereunder, if the Executive shall, as the result of mental or physical
incapacity, illness or disability, fail to perform his duties and
responsibilities provided for herein for a period of more than 90 days in any
12-month period. Upon any termination pursuant to this Section, the Executive
shall be entitled to be paid his Base Salary to the date of termination and the
Company shall have no further liability hereunder (other than for reimbursement
for reasonable business expenses incurred prior to the date of termination).
4.3 DEATH. In the event of the death of the Executive during the term
of his employment hereunder, the Company shall pay to the estate of the deceased
Executive an amount equal his Base Salary to the date of death and the Company
shall have no further liability hereunder (other than for reimbursement for
reasonable business expenses incurred prior to the date of termination).
4.4 TERMINATION WITHOUT CAUSE. The Company may terminate the
Executive's employment under this Agreement without Cause upon giving the
Executive prior written notice of such termination. Upon termination without
Cause, the Executive shall be entitled to receive his then current Base Salary
for the then remaining term of this Agreement
Company:________ Executive:________
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4.5 Termination by Executive for Good Reason or by Resignation.
(a) The Executive shall have the right to terminate his
employment under this Agreement at any time upon at least 90 days prior written
notice to the Company for Good Reason. For purposes of this Agreement, "Good
Reason" means (i) a material breach of the Company's obligations under this
Agreement, which is not remedied within ten business days after receipt of
written notice from the Executive, or (ii) any termination by the Executive
(other than a termination for Cause) during the three-month period following the
effective date of any "Change in Control." Upon termination for Good Reason, the
Executive shall be entitled to receive his then current Base Salary for the then
remaining term of this Agreement
(b) The Executive shall have the right to terminate his
employment under this Agreement by resignation at any time upon at least 90 days
prior written notice to the Company. Upon such termination by resignation, the
Executive shall be entitled to be paid his Base Salary to the date of
termination and the Company shall have no further liability hereunder (other
than for reimbursement for reasonable business expenses incurred prior to the
date of termination). Except as specifically set forth in this Section, the
Executive shall not have any additional liability or obligation hereunder by
reason of such termination.
5. CHANGE IN CONTROL. For purposes of this Agreement, a "Change in Control"
shall mean any of the following events:
(a) Without the prior approval of the Incumbent Board (hereinafter
defined), the acquisition (other than by or from the Company), at any time after
the date hereof, by any person, entity or "group," within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange
Act"), of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 30% or more of either the then outstanding shares of
common stock or the combined voting power of the Company's then outstanding
voting securities entitled to vote generally in the election of directors;
(b) The individuals who constitute the Board as of the date of this
Agreement (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board, provided that any person becoming a director subsequent
to the date of this Agreement whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board (other than an election or
nomination of an individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the election of the
directors of the Company, as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Exchange Act) shall be, for purposes of this
Agreement, considered as though such person were a member of the Incumbent
Board;
(c) Without the prior approval of the Incumbent Board, approval by the
stockholders of the Company of (A) a reorganization, merger or consolidation
with respect to which persons who were the stockholders of the Company
immediately prior to such reorganization, merger or consolidation do not,
immediately thereafter, own more than 51% of the combined voting power entitled
to vote generally in the election of directors of the reorganized, merged or
consolidated company's then outstanding voting securities, (B) a
Company:________ Executive:________
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liquidation or dissolution of the Company, or (C) the sale of all or
substantially all of the assets of the Company, unless the approved
reorganization, merger, consolidation, liquidation, dissolution or sale is
subsequently abandoned.
6. Restrictive Covenants.
6.1 Confidentiality and Rights to Inventions.
(a) CONFIDENTIAL INFORMATION. The Executive hereby
acknowledges that the Executive will or may be making use of, acquiring and
adding to confidential information of a special and unique nature and value
affecting and relating to the Company and its operations, including, but not
limited to, its business, the identities of its customers and suppliers, its
data base information, prices paid by the Company for inventory, its business
practices, marketing strategies, expansion plans, contracts, business records
and other records, trade secrets, inventions, techniques, know-how and
technologies, whether or not patentable, and other similar information relating
to the Company (all the foregoing regardless of whether same was known to the
Executive prior to the date hereof is hereinafter referred to collectively as
"Confidential Information"). The Executive further recognizes and acknowledges
that all Confidential Information is the exclusive property of the Company, is
material and confidential, and greatly affects the legitimate business
interests, goodwill and effective and successful conduct of the Company's
business. Accordingly, the Executive hereby covenants and agrees that he will
use the Confidential Information only for the benefit of the Company and shall
not at any time, directly or indirectly, either during the Term of this
Agreement or afterward, divulge, reveal or communicate any Confidential
Information to any person, firm, corporation or entity whatsoever, or use any
Confidential Information for the Executive's own benefit or for the benefit of
others.
(b) RIGHTS TO INVENTIONS, PATENTS AND COPYRIGHTS. The
Executive shall promptly disclose in writing to the Company: all ideas,
inventions, discoveries, devices, machines, apparatus, methods, compositions,
know-how, works, processes and improvements to any thereof, whether or not
patentable or copyrightable, that the Executive may conceive, make, develop,
invent, reduce-to-practice, author or discover, whether solely or jointly or
commonly with others, during the Executive's employment with the Company, or
within one calendar year following the termination of the Executive's employment
with the Company, which relate to the business of the Company at the time of
termination (the items specified in this section are hereinafter collectively
referred to as "Inventions"). All Inventions are the sole and exclusive property
of the Company. The Executive shall promptly assign, transfer and set over unto
the Company, its successors and assigns, all of his rights, title and interest
in and to all Inventions, all applications for letters patent or copyrights,
foreign and domestic, which have or may be filed on such Inventions, all
copyrights, all letters patent of the United States and its territorial
possessions and all letters patent of foreign countries which may be granted
therefor, and all reexaminations and reissues of said letters patent, including
the subject matter of any and all claims which may be obtained in every such
domestic and foreign patent, the same to be held and enjoyed by the Company for
its own and exclusive use and advantage, and for the exclusive use and advantage
of its successors, assigns and other legal representatives, to the full end of
the term or terms for which said copyrights and letters patent of the United
States, territories and foreign countries are or may be granted, reexamined or
reissued, as fully and entirely as the same would have been held and enjoyed by
the Executive if the assignment had not been made.
Company:________ Executive:________
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The Executive further covenants and agrees that the Executive will, during and
subsequent to the term of this Agreement, without demanding any other
consideration therefor, at any time, upon request, execute, or cause to be
executed, and deliver any and all papers that may be necessary or desirable to
perfect the title to any Invention and to such letters patent and copyrights as
may be granted therefor, in the Company, its successors, assigns or other legal
representatives, and that if the Company, its successors, assigns, or other
legal representatives shall desire to file any subsequent or derivative
application, or to secure a reissue or reexamination of such letters patent, or
to file a disclaimer relating thereto, the Executive will upon request, sign, or
cause to be signed, all papers, make or cause to be made all rightful oaths, and
do all lawful acts requisite for such action.
The Executive does further covenant and agree, that he will,
at any time during and subsequent to the term of this Agreement hereof, upon
request, communicate to the Company, its successors, assigns, or other legal
representatives, such facts relating to the Inventions, letters patent and
copyrights or to the history thereof, as may be known to him, and testify, at
the Company's expense, as to the same in any interference or other litigation or
proceeding in which the Executive is not a party and does not have an interest,
when requested to do so.
6.2 NONSOLICITATION OF EMPLOYEES. While employed by the Company and for
a period of three years thereafter, the Executive shall not directly or
indirectly, for himself or for any other person, firm, corporation, partnership,
association or other entity, attempt to employ or enter into any contractual
arrangement with any employee or former employee of the Company, unless such
employee or former employee has not been employed by the Company for a period in
excess of six months.
6.3 NON-COMPETITION. While employed by the Company and for a period of
three years thereafter, the Executive shall not, directly or indirectly, whether
as principal, agent, shareholder (except as set forth below) or in any other
capacity, whether or not compensation is received, engage or participate in any
activity for, be employed by, assist or have an equity interest in (other than
as a passive investor of no more than five percent with no involvement in the
management or conduct of the affairs of business of such entity) any business or
other entity which is or plans to engage in the securities brokerage business in
the State of Florida. Notwithstanding the foregoing, the Executive may be
employed by any business or other entity solely as a registered securities
broker, provided, that the Executive does not engage in any executive or
management functions for or on behalf of such business or other entity. The
Executive acknowledges that the provisions of this Section 6.3 are reasonably
necessary for the purposes of protecting the Company's and its subsidiaries'
legitimate business interests and goodwill. It is accordingly the intention of
the parties that this Section 6.3 be enforceable to the fullest extent
permissible under applicable law. The Executive agrees, however, that in the
event any restriction or limitation of this Section 6.3, or any portion thereof,
shall be declared or held to be invalid or unenforceable by a court of competent
jurisdiction, then such restriction or limitation shall be deemed amended to
substitute or modify it, as either or both may be necessary, to render it valid
and enforceable.
6.4 EQUITABLE RELIEF. It is recognized and hereby acknowledged by the
parties hereto that a breach by the Executive of any of the covenants contained
in this Article 6 will
Company:________ Executive:________
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cause irreparable injury to the Company's and its subsidiaries' legitimate
business interests and goodwill and that such injury would not be adequately
compensated by monetary damages. Accordingly, the Executive recognizes and
hereby acknowledges that the Company and any of its subsidiaries shall be
entitled to specific performance of any of the provisions of this Article 6 and
an injunction from any court of competent jurisdiction enjoining and restraining
any violation of any or all of the covenants contained in this Article 6 by the
Executive or any of his affiliates, associates, partners or agents, either
directly or indirectly, and that such right to injunction and specific
performance shall be cumulative and in addition to whatever other remedies the
Company or its subsidiaries may possess.
6.5 BOOKS AND RECORDS. All books, records, and accounts relating in any
manner to the customers or clients of the Company, whether prepared by the
Executive or otherwise coming into the Executive's possession, shall be the
exclusive property of the Company and shall be returned immediately to the
Company on termination of the Executive's employment hereunder or on the
Company's request at any time.
7. GOVERNING LAW; VENUE. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without application of any
conflicts of laws principles, and any proceeding contemplated by Section 6.4 or
to enforce any arbitration award contemplated by Section 12 shall be heard in
the state or federal courts located in Seminole County, Florida. The parties
hereto hereby consent to personal jurisdiction in such venue and waive any claim
or argument that such venue is inconvenient or improper.
8. NOTICES: Any notice required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been given when delivered by
hand or three days after being deposited in the United States mail, by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Company: Empire Financial Holding Company
0000 Xxxx Xxxxx Xxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Board of Directors
WITH A COPY TO:
--------------
Xx. Xxxxxxx X. Xxxxxxx
Xxxxxxxxx Traurig, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
If to the Executive: Xxxxxx X. Xxxxxxxxx Xx.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxx, XX 00000
or to such other addresses as either party hereto may from time to time give
notice of to the other in the aforesaid manner.
Company:________ Executive:________
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9. Successors.
(a) This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive other
than the transfers of benefits hereunder by will or the laws of descent and
distribution.
(b) This Agreement shall inure to the benefit of, be enforceable by and
be binding upon the Company's successors and assigns.
(c) The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
10. SEVERABILITY. The invalidity of any one or more of the words, phrases,
sentences, clauses or sections contained in this Agreement shall not affect the
enforceability of the remaining portions of this Agreement or any part thereof,
all of which are inserted conditionally on their being valid in law, and, in the
event that any one or more of the words, phrases, sentences, clauses or sections
contained in this Agreement shall be declared invalid, this Agreement shall be
construed as if such invalid word or words, phrase or phrases, sentence or
sentences, clause or clauses, or section or sections had not been inserted. If
such invalidity is caused by length of time or size of area, or both, the
otherwise invalid provision will be considered to be reduced to a period or
area, which would cure such invalidity.
11. WAIVERS. The waiver by either party hereto of a breach or violation of any
term or provision of this Agreement shall not operate nor be construed as a
waiver of any subsequent breach or violation.
12. ARBITRATION. Except as set forth in Section 6.4, any controversy between the
parties regarding this Agreement and any claims arising out of this Agreement or
its breach shall be required to be submitted to binding arbitration. Either
party shall have the right to commence arbitration proceedings. The arbitration
proceedings shall be conducted, by a panel of three industry arbitrators,
pursuant to the arbitration rules of the National Association of Securities
Dealers, Inc. The arbitration shall be conducted in Seminole County, Florida and
the arbitrators shall have the right to award actual damages and attorney fees
and costs, but shall not have the right to award punitive, special, exemplary or
consequential damages against any party. The parties shall hold any award
resulting from such proceeding or settlement in connection therewith in strict
confidence, unless the disclosure of such award or settlement is required by
law.
13. DAMAGES. Nothing contained herein shall be construed to prevent the Company
or the Executive from seeking and recovering from the other damages sustained by
either or both of them as a result of its or his breach of any term or provision
of this Agreement.
14. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this Agreement
is intended, or shall be construed, to confer upon or give any person (other
than the parties hereto
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and, in the case of Executive, his heirs, personal representative(s) and/or
legal representative) any rights or remedies under or by reason of this
Agreement.
15. CONFLICTS WITH OTHER AGREEMENTS. The Executive represents to the Company
that the Executive's execution and performance of this Agreement does not
violate the provisions of any employment, non-competition or other agreement to
which the Executive is a party or by which the Executive is bound.
16. INDEMNIFICATION. The Company agrees to promptly execute and deliver to the
Executive an Indemnification Agreement in substantially the same form as
utilized for the Chairman of the Board, it being agreed that the Company will
use its best efforts to ensure that such agreement will provide for mandatory
indemnification and advancement of expenses to the fullest extent permitted by
law.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
COMPANY:
EMPIRE FINANCIAL HOLDING COMPANY
By: _______________________
Xxxxx X. Xxxxx
Chief Executive Officer
EXECUTIVE:
_____________________________
Xxxxxx X. Xxxxxxxxx Xx.
Company:________ Executive:________
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