EXHIBIT 10.4
XXXXXXXX X. XXXXXX, XX.
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EMPLOYMENT AGREEMENT
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This Employment Agreement is made effective the 11th day of May, 2000, by
and between THE BANC STOCK GROUP, INC., a Florida corporation (the "Company" or
"Employer") and XXXXXXXX X. XXXXXX, XX. (the "Employee").
A. Employee was selected as President of the Company on May 11, 2000.
B. Employee will possess an intimate knowledge of the business and
affairs of the Company and its policies, procedures and personnel.
C. The Company desires to secure the employment of Employee on behalf of
the Company in accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the parties hereto agree as follows:
1. EMPLOYMENT.
a. During the term of this Agreement, or any extension or renewal
hereof (for purposes hereof, all references herein to the term of
this Agreement shall be deemed to include references to the
period of extension or renewal hereof, if any) Employee will,
except as described below, devote his full time and best efforts
to his employment and perform diligently such duties as are or
may be from time to time required by the Board of Directors of
Employer (the "Board"), which duties shall be consistent with his
position as set forth in Paragraph 2 hereof.
b. Employee shall not, without the prior written consent of the
Board, directly or indirectly, during the term of this Agreement,
other than in the performance of duties naturally inherent in the
business of Employer or any subsidiary of Employer and in
furtherance thereof, render services of a business, professional
or commercial nature to any other person or firm, whether for
compensation or otherwise. For purposes of this Agreement, all
references herein to subsidiaries of Employer shall be deemed to
include references to subsidiaries now or hereafter existing.
c. Nothing in this paragraph will be construed to prohibit Employee
from serving on civic, religious or charitable boards, committees
or commissions, or on boards of directors of for-profit
corporations so long as such corporations are not directly or
indirectly engaged in any business that is competitive with any
business of Employer or its subsidiaries.
d. The Company will maintain a life insurance policy on the life of
Employee which will pay a minimum of $100,000 death benefit to
Employee's beneficiary upon his death.
2. TERM AND POSITIONS.
a. Subject to the provisions for termination as hereinafter
provided, the term of this Agreement shall be deemed to begin on
the 11th day of May, 2000, and shall continue for a term of one
(1) year from such date, and the employment term under this
Agreement extends automatically for an additional year on each
anniversary of this Agreement; unless either party notifies the
other, on not less than sixty (60) days prior written notice,
that it elects not to renew this Agreement.
b. Employee shall serve as President and Chief Executive Officer of
Employer and in such similar positions with any subsidiary of
Employer as shall, from time to time, be assigned by the Board.
3. COMPENSATION AND BENEFITS.
a. For all services he may render to Employer and any subsidiary of
Employer during the term of this Agreement, Employee shall
receive an annual salary of $150,000, payable bi-weekly (26 pay
periods per year), and subject to proper deductions. Employee is
granted warrants to purchase one million shares of Class A common
stock of the Company for the price of $1.60 per share. Said
warrants have a life of ten (10) years, and will vest in Employee
at the rate of twenty percent (20%) immediately and twenty
percent (20%) thereafter at the anniversary of each year of
employment. A copy of the Warrant Agreement is attached hereto as
"Exhibit A." Bonuses in the form of cash, stock or other equity
position shall be considered by the Board from time to time, and
at the Board's sole discretion. The compensation provided to
employee may be allocated to the Company and its subsidiaries as
appropriate.
b. During the term of this Agreement, Employee shall be entitled to
such vacation privileges, hospitalization, insurance and
retirement plan benefits and such other similar employment
privileges and benefits as are afforded generally from time to
time to other executives of Employer.
4. TERMINATION AND FURTHER COMPENSATION.
a. The employment of Employee under this Agreement, and the term
hereof, may be terminated by Employer for cause at any time
without the payment of any severance benefits whatsoever. For
purposes hereof the term "cause" means:
i. Employee's fraud, dishonesty, willful misconduct, or gross
negligence in the performance of his duties hereunder;
ii. Employee's material breach of any provision of this
Agreement; and
iii. Employee's conviction for a crime of moral turpitude.
Any termination by reason of the foregoing shall not be in limitation
of any other right or remedy Employer may have under this Agreement or
otherwise.
b. In the event of termination of this Agreement by Employer without
cause, Employee shall be entitled to six (6) months of his then
current annual salary as severance pay but shall be entitled to
receive no other compensation or benefits under this Agreement.
c. In the event that Employee is terminated by the Company for any
reason other than "cause" (defined above) within 24 months after
the occurrence of a Control Event (defined below) then Employee
will be entitled to receive the following severance benefits:
i. one (1) time Employee's aggregate compensation, including
bonus, for the most recently completed fiscal year to be
paid as a lump sum within 30 days after the date of
termination.
ii. the non-competition provision for the Employee set forth in
Section 7 (b) and (c), below will be reduced to 6 months.
iii. family medical coverage will be continued for Employee and
his family at the level provided by the Company as of the
date of termination for a period of one (1) year after the
date of termination. However, should Employee find new
employment that provides as a benefit of employment health
insurance, then this obligation shall terminate upon the
implementation of said replacement health insurance.
iv. All Qualified Stock Options or Warrants accelerate and
become vested immediately upon such scenario.
For the purpose of this Agreement, the term "Control Event" is any
event involving a change in control of the Company including, but not
limited to, the sale of a majority of the assets of the Company or the
acquisition of 50% or more of the stock of the Company by a single
purchaser or its affiliates. However, notwithstanding the foregoing, a
sale of stock or the grant of options or warrants to Stonehenge
Holdings, Inc. or affiliates, or its designees shall not, now or over
a period of years, be considered a "Control Event" for purposes of
this Agreement.
d. Should the Employee voluntarily terminate his own employment, no
benefits shall be due or owing.
5. RENEWAL. The term of this Agreement may be extended or renewed by
mutual agreement of Employer, acting through the Board and Employee.
6. REIMBURSEMENT. Employer shall reimburse Employee (or provide him with
an expense allowance) for travel, entertainment and other expenses
reasonably and necessarily incurred by Employee in the promotion of
Employer's business.
7. COVENANTS AND CONFIDENTIAL INFORMATION.
a. Employee agrees that in the event his employment under this
Agreement is voluntarily terminated by Employee or is terminated
by Employer for cause (as defined in Paragraph 4a), then during
the term of this Agreement and for a period of one (1) year
thereafter, he will not, directly or indirectly, do or suffer any
of the following without the prior written consent of the Board:
b. Own, manage, control or participate in the ownership, management
or control of, or be employed or engaged by or otherwise
affiliated or associated as a consultant, independent contractor
or otherwise with, any other corporation, partnership,
proprietorship, firm, association, or other business entity which
markets or sells stocks to the customers served by Employer, be
employed by, operate or manage a registered investment adviser in
the Central Ohio area; provided, however, that the ownership of
not more than one percent (1%) of the stock of any publicly
traded corporation shall not be deemed a violation of this
covenant;
i. Employ, assist in employing, or otherwise associate in
business with any present, former or future employee,
officer or agent of Employer or any of Employer's
subsidiaries; and
ii. Induce any person who is an employee, officer or agent of
Employer or any of Employer's subsidiaries to terminate said
relationship.
c. Employee agrees that at any time during or after the term of this
Agreement or any amendments hereto, and for a period of one (1)
year thereafter, he will not disclose, divulge, discuss, copy or
otherwise use or suffer to be used in any manner, in competition
with, or contrary to the interests of, Employer or any of
Employer's subsidiaries, the customer lists, research or data or
other trade secrets of Employer or any of Employer's
subsidiaries, it being acknowledged by Employee that all such
information regarding the business of Employer and Employer's
subsidiaries compiled or obtained by, or furnished to, Employee
while Employee shall have been employed by or associated with
Employer is confidential information and Employer's exclusive
property.
d. Employee expressly agrees and understands that the remedy at law
for any breach by him of this Paragraph 7 will be inadequate and
that the damages flowing from such breach are not readily
susceptible to being measured in monetary terms. Accordingly, it
is acknowledged that upon adequate proof of Employee's violation
of any legally enforceable provision of this Paragraph 7,
Employer shall be entitled to immediate injunctive relief and may
obtain a temporary order restraining any threatened or further
breach. Nothing in this Paragraph 7 shall be deemed to limit
Employer's remedies at law or in equity for any breach by
Employee of any of the provisions of this Paragraph 7 which may
be pursued or availed of by Employer.
e. In the event Employee shall violate any legally enforceable
provision of this Paragraph 7 as to which there is a specific
time period during which he is prohibited from taking certain
actions or from engaging in certain activities, as set forth in
such provision, then, in such event, such violation shall toll
the running of such time period from the date of such violation
until such violation shall cease.
f. Employee has carefully considered the nature and extent of the
restrictions upon him and the rights and remedies conferred upon
Employer under this Paragraph 7, and hereby acknowledges and
agrees that the same are reasonable in time and territory, are
designed to eliminate competition which otherwise would be unfair
to Employer, do not stifle the inherent skill and experience of
Employee, would not operate as a bar to Employee's sole means of
support, are fully required to protect the legitimate interests
of Employer and do not confer a benefit upon Employer
dis-proportionate to the detriment to Employee.
8. SEVERABLE PROVISIONS. The provisions of this Agreement are severable
and if any one or more provisions are determined to be illegal or
otherwise unenforceable, in whole or in part, the remaining provisions
and any partially unenforceable provision to the extent enforceable in
any jurisdiction shall, nevertheless, be binding and enforceable.
9. DEATH OR PERMANENT DISABILITY. In the event of Employee's death or
permanent disability (as hereinafter defined) occurring during the
term of this Agreement, this Agreement shall be deemed terminated and
he or his estate, as the case may be, shall be entitled to no further
compensation or other privileges or benefits hereunder, except (i)
that portion of any unpaid salary or other benefits accrued and earned
by Employee hereunder up to and including the day of death or
disability, as the case may be; (ii) in the case of death,
continuation of salary under Paragraph 3(a) by payment to Employee's
surviving spouse, if any, otherwise to his estate, such payments to
continue for one hundred eighty (180) days and (iii) in the case of
permanent disability, continuation of salary payments for twelve (12)
months, less, however, any payments received by Employee (or his
personal representative) directly from any insurer under any insurance
policy or disability, the premiums which have been paid by Employer.
Notwithstanding the foregoing, should the Company provide insurance to
cover disability or to provide death benefits, payments under such
insurance will be a credit against payments under this Paragraph 9.
However, in no event will Employee or his estate receive less than the
benefits provided in this paragraph. The phrase "permanent disability"
shall be deemed to occur after three hundred (300) days in the
aggregate during any consecutive eighteen (18) month period, or after
ten (10) consecutive months, as the case may be. Employee, by reason
of his physical or mental disability or illness, shall have been
unable to discharge fully his duties under this Agreement.
10. BINDING AGREEMENT. The rights and obligations of Employer under this
Agreement shall inure to the benefit of, and shall be binding upon,
Employer and its successors and assigns, and the rights and
obligations of Employee under this Agreement shall inure to the
benefit of, and shall be binding upon. Employee and his heirs,
personal representatives and estate.
11. ARBITRATION. With the exception of the provisions of Paragraph 7
above, which paragraph is not subject to this paragraph, should any
dispute at any time arise between any of the parties hereto with
respect to
their rights, obligations, duties or requirements under and by virtue
of the provisions of this Agreement, such dispute shall be referred
to, and consent and approval of each of the parties hereto is
expressly given to refer said dispute for such determination to. The
American Arbitration Association in the City of Columbus, Ohio, in
accordance with its rules then obtaining, and judgment upon the award
may be entered in any Court having jurisdiction thereof. The fees
assessed for such arbitration shall be paid equally by the parties.
* ARBITRATION IS FINAL AND BINDING ON THE PARTIES ON ALL CLAIMS
ARISING FROM A DISPUTE;
* THE PARTIES EXCLUSIVELY WAIVE THEIR RIGHT TO SEEK REMEDIES IN
COURT, INCLUDING THE RIGHT TO A JURY TRIAL;
* PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED AND DIFFERENT
FROM COURT PROCEEDINGS;
* THE ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL
FINDINGS OR LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAL OR TO
SEEK MODIFICATION OF RULINGS BY ARBITRATORS IS STRICTLY LIMITED;
* THE RULES OF THE NASD MAY REQUIRE THE APPOINTMENT OF AN
ARBITRATOR OR A PANEL OF ARBITRATORS WHO WERE OR ARE AFFILIATED
WITH THE SECURITIES INDUSTRY
12. NOTICES. Any notice to be given under this Agreement shall be
personally delivered in writing or shall have been deemed duly given
after it is posted in the United States Mails, postage prepaid,
registered or certified, return receipt requested, and if mailed to
Employer, shall be addressed to Employer at its principal place of
business, attention: Xxxxxx X. Xxxxx, Secretary, and if mailed to
Employee, shall be addressed to him at his home address last shown on
the records of Employer, or at such other address or addresses as
either Employer or Employee may hereafter designate in writing to the
other.
13. WAIVER. The failure of either party to enforce any provision or
provisions of this Agreement shall not in any way be construed as a
waiver of any such provision or provisions as to any future violations
thereof, nor prevent that party thereafter from enforcing each and
every other provision of this Agreement. The rights granted the
parties herein are cumulative and the waiver of any single remedy
shall not constitute a waiver of such party's right to assert all
other legal remedies available to it under the circumstances.
14. MISCELLANEOUS. This Agreement supersedes all prior employment
agreements and understandings between the parties and may not be
modified or terminated orally. No modification, termination or
attempted waiver of this Agreement shall be valid unless in writing
and signed by the party against whom the same is sought to be
enforced. This Agreement shall be governed by and construed according
to the laws of the State of Ohio.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
authority of its Board of Directors, and Employee has hereunto set his hand, the
day and year set forth below.
THE COMPANY: EMPLOYEE:
THE BANC STOCK GROUP, INC. XXXXXXXX X. XXXXXX, XX.
By: /S/ Xxxxx X. Xxxxxxx /S/ Xxxxxxxx X. Xxxxxx, Xx.
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Xxxxx X. Xxxxxxx, Chairman
Board of Directors
Date: June 6, 2000 Date: June 6, 2000
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