EXHIBIT 10.30
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of November 7, 2007 (the "Effective Date) by and between EMPIRE FINANCIAL
HOLDING, INC. a Florida corporation (the "Company"), and XXXXX X. XXXXXXX (the
"Employee").
RECITALS
A. The Company wishes to employ the Employee on the terms and
conditions set forth in this Agreement
B. The Employee is entering into this agreement in order to make his
services available to the Company, on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
TERMS
1. Employment.
1.1 Employment and Term. The Company hereby agrees to employ
the Employee and the Employee hereby agrees to serve the Company, on the terms
and conditions set forth herein, for the period commencing on the Effective Date
and ending November 6, 2010 unless sooner terminated as hereinafter provided
(the "Employment Term").
1.2 Duties of Employee. The Employee shall serve as the Chief
Operating Officer for Empire Financial Holding Company and its subsidiaries,
including, Jesup and Xxxxxx Securities, Inc., and Empire Financial Group, Inc.,
U.S. Securities and Exchange ("SEC") registered broker-dealers ("Broker Dealer
Subsidiaries"). Employee shall be responsible for the strategic direction,
management and effective operation of the Broker Dealer Subsidiaries. During the
Employment Term, the Employee shall diligently perform all services as may be
reasonably assigned to the Employee by the Company consistent with his position,
and shall exercise such power and authority as may from time to time be
delegated to the Employee by the Chief Executive Officer of the Company or the
Board of Directors of the Company. The Employee shall devote all of the
Employee's working time and attention to the business and affairs of the Company
(excluding any vacation and sick leave to which the Employee is entitled),
render such services to the best of the Employee's ability, and use the
Employee's reasonable best efforts to promote the interests of the Company.
1.3 Place of Performance. In connection with his employment by
the Company, the Employee shall be based at the Company's principal offices
located in Longwood, Florida, except for travel reasonably necessary in
connection with the Company's business.
2. Compensation.
2.1 Salary. Commencing on the Effective Date of this
Agreement, the Employee shall receive compensation at the annual rate of
$250,000 during the term of this Agreement, with such salary payable in
installments consistent with the Company's normal payroll schedule. The CEO and
Board of Directors will annually review and adjust base compensation to reflect
any cost of living adjustment or merit increases.
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2.2 Bonus. Employee shall be entitled to participate in the
"Senior Executive Employee Bonus Pool" during the Employment Term on the
following basis: For the quarter ended December 31, 2007, Employee shall be
entitled to prorata share of any bonus pool adjusted for the partial year of
employment during 2007. For all subsequent years, Employee shall be entitled to
a bonus distribution in accordance with the Company's policies in effect at that
time.
2.4 Withholding. All payments to be made to Employee hereunder
shall be subject to applicable withholding and other taxes.
2.5 Stock Grant. Upon execution of this Agreement, Employee
shall be granted 100,000 shares of the Common Stock of the company. The shares
granted pursuant to this provision shall vest in equal 1/3 amounts each year for
3 years.
2.6 Options. Upon execution of this Agreement, the Company
shall grant Employee a five-year option to purchase 200,000 shares of the Common
Stock of the Company, at a price per share equal to 110% of the closing price on
the day on which the approval is obtained (or if such day is not a "trading
day", the closing price on the immediately preceding "trading day"). The options
granted pursuant to this provision shall vest in equal 1/3 amounts each year for
3 years.
2.7 Stock Purchase Advance. The company shall advance up to
$100,000 to Employee for the sole purpose of purchasing shares of Common Stock
of the Company. Employee shall utilize the loan proceeds to match purchases made
by Employee of the Common Stock during the initial 90 days of employment up to a
maximum of $100,000. Any shares purchased utilizing the $100,000 grant shall
vest in equal increments over the term of this agreement. Any amount advanced
under this paragraph shall be treated as an advance of any bonus payable during
calendar year 2008.
3. Expense Reimbursement and Other Benefits.
3.1 Expense Reimbursement . During the Employment Term, the
Company, upon the submission of reasonable supporting documentation by the
Employee, shall reimburse the Employee for all reasonable approved expenses
actually paid or incurred by the Employee in the course of and pursuant to the
business of the Company, including expenses for travel and entertainment.
3.2 Other Benefits. During the Employment Term, the Employee
shall be entitled to participate to the extent he qualifies, in any
profit-sharing or retirement plans, life or health insurance plans or other
benefit plans maintained by the Company, upon such terms and conditions as are
made available to similarly-situated executive employees of the Company,
generally.
3.3 Vacation. During the term of this Agreement, the Employee
shall be entitled to 3 (three weeks) paid vacation in accordance with the
appropriate plans, policies, programs and practices of the Company and its
subsidiaries as in effect at any time hereafter with respect to other key
Employees of the Company and its subsidiaries.
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) a
material failure or refusal of the Employee to perform the duties or render the
services assigned under this Agreement, or other material breach of this
Agreement, which is not remedied within ten business days after receipt of
written notice from the Company, (ii) the indictment of the Employee for any
criminal act which is a felony, or (iii) Employee willingly engaging in
misconduct which is materially injurious to the Company, monetarily or
otherwise, including, but not limited to, engaging in any conduct which
constitutes a crime under federal, state or local laws. Upon any termination
pursuant to this Section, the Employee shall only be entitled to be paid his
Base Salary to the date of termination and
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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 Employee, shall
at all times have the right to terminate this Agreement, and the Employee's
employment hereunder, if the Employee 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 Employee
shall be entitled to be paid his Base Salary and commissions due 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 Employee during
the term of his employment hereunder, the Company shall pay to the estate of the
deceased Employee 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).
5. Early Termination and Severance.
5.1 Early Termination . In the event of any sale, merger,
acquisition or transfer of all or substantially all of the assets of the Company
to an unaffiliated entity, all unvested or restricted shares or options shall
immediately vest and may be exercised or sold or otherwise liquidated.
5.2 Termination Due to Sale. In the event the Agreement is
terminated by the Company due to a sale, merger or acquisition of all of the
assets of the Company, the Company agrees to pay employee a severance payment
equal to one year's compensation or $250,000, whichever is greater.
5.3 Severance. In the event Employee is terminated for cause
as set forth in paragraph 4.1, the Company is not obligated to pay any
severance. In the event the Agreement is terminated by the Company for any
reason other than for cause or a sale, merger or acquisition of all of the
assets of the Company, the Company agrees to pay employee a severance payment
equal to six month's compensation.
6. Restrictive Covenants.
6.1 Confidential Information. The Employee hereby acknowledges
that the Employee 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, its data base information, its
business practices, marketing strategies, expansion plans, contracts, business
records and other records, trade secrets, techniques, know-how, and other
similar information relating to the Company (all the foregoing regardless of
whether same was known to the Employee prior to the date hereof is hereinafter
referred to collectively as "Confidential Information"). The Employee 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 Employee 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
Employment Term of or afterward, divulge, reveal or communicate any Confidential
Information to any person, firm, corporation or entity whatsoever, or use any
Confidential Information for the Employee's own benefit or for the benefit of
others.
6.2 Non-Solicitation of Customers. During the Employment Term
and for a period of two (2) years from expiration thereof, Employee will not
directly or indirectly:
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(i) solicit business from any of the Company's
customer accounts existing at the date hereof or at any time
during the Employment Term;
(ii) handle or manage accounts belonging to any such
customers for any other business;
6.3 Non-Solicitation of Employees, etc. During the Employment
Term and for a period of one (1) year from expiration thereof, you will not
directly or indirectly:
(ii) 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;
or
(ii) attempt to employ or enter into any contractual
arrangement with any independent financial advisors or brokers
for whom the Company provides services on the date hereof or
at any time during the Employment Term, unless such
independent contractor has not had a contractual relationship
with the Company for a period in excess of six months.
6.4 Equitable Relief. It is recognized and hereby acknowledged
by the parties hereto that a breach by the Employee of any of the covenants
contained in this Article 5 will 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
Employee 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 5 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 5 by the Employee 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 Employee or otherwise coming into the Employee's possession,
shall be the exclusive property of the Company and shall be returned immediately
to the Company on termination of the Employee'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 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:
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If to the Company: Empire Financial Holding Company
0000 Xxxx XX 000, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxxxxx, Xx.,
President & CEO
If to the Employee: Xxxxx X. Xxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, 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.
9. Successors.
(a) This Agreement is personal to the Employee and without the
prior written consent of the Company shall not be assignable by the Employee
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. Damages. Nothing contained herein shall be construed to prevent the
Company or the Employee 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.
13. 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 and, in the case of Employee, his heirs, personal
representative(s) and/or legal representative) any rights or remedies under or
by reason of this Agreement.
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14. Conflicts With Other Agreements. The Employee represents to the
Company that the Employee's execution and performance of this Agreement does not
violate the provisions of any employment, non-competition or other agreement to
which the Employee is a party or by which the Employee is bound.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
COMPANY :
EMPIRE FINANCIAL HOLDING, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx November 7, 2007
Xxxxxx X. Xxxxxxxxxx Date
Chairman
Empire Financial Group, Inc.
EMPLOYEE :
/s/ Xxxxx X. Xxxxxxx November 7, 2007
Xxxxx X. Xxxxxxx Date
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