EXHIBIT 10.7
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 22nd day of November, 1999,
by and between XXXXXXXX FINANCIAL, INC., a British Columbia, Canada corporation
(the "Company"), and XXXXX X. XXXXXXXXXXX (the Employee).
W I T N E S S E T H:
WHEREAS, the Company desires to assure itself of the
Employee's continued employment in an Employee capacity;
WHEREAS, the Company recognizes that circumstances may arise
in which a change in control of the Company occurs, through acquisition or
otherwise, thereby causing uncertainty about the Employee's future employment
with the Company without regard to the Employee's competence or past
contributions, which uncertainty may result in the loss of valuable services of
the Employee to the detriment of the Company and its shareholders, and the
Company and the Employee wish to provide reasonable security to the Employee
against changes in the Employee's relationship with the Company in the event of
any such change in control;
WHEREAS, the Company and the Employee are desirous that any
proposal for a change in control or acquisition of the Company will be
considered by the Employee objectively and with reference only to the best
interests of the Company and its shareholders;
WHEREAS, the Employee will be in a better position to consider
the Company's best interests if the Employee is afforded reasonable security, as
provided in this Agreement, against altered conditions of employment which could
result from any such change in control or acquisition; and
WHEREAS, the Employee desires to be employed by the Company on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements of the parties contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto covenant and agree as follows:
1. EMPLOYMENT AND DUTIES. Subject to the terms and
conditions of this Agreement, the Company agrees to employ the Employee, and the
Employee hereby agrees to serve the Company, as Sr. VP - Finance & CFO. Xxxxx
Xxxxxxxxxxx shall report directly to Xxxxx Xxxxxxx, President & CFO and shall
render to the Company such management [and policy-making] services of the type
customarily performed by persons serving in similar capacities with other
employers that are similar to the Company, together with such other duties with
which he is charged by the Company's By-laws and subject to the overall
direction and control of the Company's Board of Directors. The Employee accepts
such employment and agrees to devote his best efforts and substantially all of
his business time, skill, labor and attention to the performance of such duties.
The Employee agrees not to engage in or be concerned with any other commercial
duties or pursuits during the Term (as hereinafter defined) of this Agreement;
provided, however, that the Employee may be involved in a passive capacity in a
non-competitive business subject to the prior written approval of the Company's
Board of Directors. Furthermore, the Employee shall assume and competently
perform such reasonable responsibilities and duties as may be assigned to him
from time to time by the Chairman of the Board or Chief Executive Officer of the
Company. To the extent that the Company shall have any parent, subsidiary,
affiliated corporations, partnerships, or joint venture (collectively "Related
Entities"), the Employee shall perform such duties to promote these entities and
their respective interests to the same extent as the interests of the Company
without additional
compensation. At all times, Employee agrees that he has read and will abide by,
and prospectively will read and abide by, any employee handbook, policy, or
practice that the Company or Related Entities has or hereafter adopts with
respect to its employees generally.
2. TERM. Subject to the terms and conditions of this
Agreement, including but not limited to the provisions for termination set forth
in Section 5 hereof, the employment of the Employee under this Agreement shall
commence on the date hereof and shall continue through and including the close
of business on the 1st anniversary of the date hereof (the "Initial Term");
provided, however, that this Agreement shall renew automatically on the
anniversary of such termination date for successive 2-year terms (the Initial
Term, as well as any such renewal (s) thereof, shall be referred to herein as
the "Term") unless the Company provides to the Employee, at least sixty (60)
days prior to the expiration of the Initial Term or any renewal Term, written
notification that it intends not to renew this Agreement; and, provided,
further, that this Agreement may be terminated in accordance with Section 5
hereof (with the exception of the obligations of the parties hereunder that
shall survive any such termination).
3. COMPENSATION.
(a) Annual Base Salary and Bonus. As compensation for
his services under this Agreement, the Employee shall receive, and the Company
shall pay, an annual base salary of such amount as shall be determined by the
Company's Board of Directors not less than $ 75,000 for the first year of the
Term, and thereafter during the Term at such annual base salary as shall be
determined by the Company's CEO. Such annual base salary shall be payable in
equal installments in accordance with the policy then prevailing for the
Company's Employees. In addition to such annual base salary, the Employee shall
be entitled, during the Term, to an annual performance bonus as determined by
the Compensation Committee of the Board of Directors (or other committee
performing similar functions), and to participate in and receive payments from
all other bonus and other incentive compensation plans as may be adopted by the
Company as are made available to other Employees of the Company.
(b) Payments. All amounts paid pursuant to this
Agreement shall be subject to withholding or deduction by reason of the Federal
Insurance Contribution Act, Federal income tax, state and local income tax, if
any, and comparable laws and regulations.
(c) Other Benefits. The Employee shall be reimbursed
by the Company for all reasonable and customary travel and other business
expenses incurred by him in the performance of his duties hereunder in
accordance with the Company's standard policy regarding expense verification
practices. The Employee shall be entitled to that number of weeks paid vacation
per year that is available to other Employee's of the Company, and shall be
eligible to participate in such pension, life insurance, health insurance,
disability insurance and other employee benefits plans, if any, which the
Company may from time to time make available to its Employee's generally.
4. NONCOMPETITION AND NON-DISCLOSURE REQUIREMENTS.
(a) Employee acknowledges that his services are of a
special, unique, extraordinary and intellectual character, and his position with
the Company places him in a position of confidence and trust with customers,
suppliers and employees of the Company and other Related Entities. The Employee
further acknowledges that the rendering of services under this Agreement
necessarily requires the disclosure to him of confidential information (as
defined below) of the Company and/or Related Entities. The Employee and the
Company agree that both prior to and during his course of employment with the
Company, the Employee had, has and will continue to develop personal
relationships with the Company's financiers, customers, suppliers and employees,
and that the Employee holds a position of substantial trust and confidence. As a
consequence, the Employee agrees that it is reasonable
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and necessary for the protection of goodwill and legitimate business interests
of the Company and Related Entities that the Employee make the covenants
contained herein, that the covenants are a material inducement for the Company
to employ the Employee and to enter into this Agreement, and that the covenants
are given as an integral part of and incident to this Agreement.
(b) The Employee covenants and agrees that during his
employment by the Company (whether during the Term hereof or otherwise), and
thereafter for a period of two (2) years following the termination of the
Employee's employment with the Company, he will not:
(i) directly or indirectly engage in,
continue in or carry on the business of the Company or any Related
Entity, or any business substantially similar thereto, including owning
or controlling any financial interest in, any corporation, partnership,
firm or other form of business organization which competes with or is
engaged in or carries on any aspect of such business or any business
substantially similar thereto;
(ii) directly or indirectly, assist,
promote or encourage any employees or clients, or potential employees
or clients, of the Company or Related Entities to terminate or
discontinue their relationship in order to pursue opportunities or
employment with any competitor of the Company or Related Entities;
(iii) consult with, advise or assist in
any way, whether or not for consideration, any corporation,
partnership, firm or other business organization which is now, becomes
or may become a competitor of the Company or any Related Entity in any
aspect of their respective businesses during the Employee's employment
with the Company, including, but not limited to: advertising or
otherwise endorsing the products of any such competitor; soliciting
customers or otherwise serving as an intermediary for any such
competitor; or loaning money or rendering any other form of financial
assistance to or engaging in any form of business transaction whether
or not on an arms' length basis with any such competitor; or
(iv) engage in any practice the purpose
of which is to evade the provisions of this Agreement or to commit any
act which is detrimental to the successful continuation of, or which
adversely affects, the business or the Company; provided, however, that
the foregoing shall not preclude the Employee's ownership of not more
than 5% of the equity securities of a corporation which has such
securities registered under Section 12 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
(c) The Employee acknowledges that the inventions,
innovations, software, trade secrets, business plans, financial strategies,
finances, and all other confidential or proprietary information with respect to
the business and operations of the Company and Related Entities are valuable,
special and unique assets of the Company. The Employee agrees not to, at any
time during or after the Term of this Agreement, disclose, directly or
indirectly, to any person or entity, or use or authorize or propose to authorize
any person or entity to use any confidential or proprietary information with
respect to the Company or Related Entities without the prior written consent of
the Company including, without limitation, information as to the financial
condition, results of operations, identities of clients or prospective clients,
products under development, acquisition strategies or acquisitions under
consideration, pricing or cost information, marketing strategies or any other
information relating to the Company or any of the Related Entities which could
be reasonably regarded as confidential. However, this does not include
information which is or shall become generally available to the public other
than as a result of disclosure by the Company or Related Entities or any of
their agents, affiliates or representatives or a person to whom any of them has
provided such information.
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(d) The Employee agrees that the geographic scope of
this covenant not to compete shall extend to (i) the states of Florida, Georgia
and North Carolina, which constitute the geographic area in which the Company
has operated its business at some time during the two years preceding the date
of this Agreement; or (ii) such broader geographic area where the Company
conducts business at any time during the Term of this Agreement.
(e) In the event of any breach of this covenant not
to compete, the Employee recognizes that the remedies at law will be inadequate
and that in addition to any relief at law which may be available to the Company
for such violation or breach and regardless of any other provision contained in
this Agreement, the Company shall be entitled to equitable remedies (including
an injunction) and such other relief as a court may grant after considering the
intent of this Section 4.
(f) In the event a court of competent jurisdiction
determines that the provisions of this covenant not to compete are excessively
broad as to duration, geographic scope, prohibited activities or otherwise, the
parties agree that this covenant shall be reduced or curtailed to the extent
necessary to render it enforceable.
5. TERMINATION.
(a) Death. The Employee's employment hereunder shall
terminate upon his death.
(b) Disability. If, during the Term, the Employee
becomes physically or mentally disabled in accordance with the terms and
conditions of any disability insurance policy covering the Employee or, if due
to such physical or mental disability, the Employee becomes unable for a period
of more than twelve (12) consecutive months to perform his duties hereunder on
substantially a full-time basis as determined by the Company in its sole
reasonable discretion, the Company may, at its option, terminate the Employee's
employment hereunder upon not less than thirty (30) days' written notice of
termination.
(c) Cause. The Company may terminate this Agreement
at any time with Cause. As used in this Agreement, "Cause" shall mean the
following: (1) a material violation of the Employer's policies or practices
which reasonably justifies termination; (2) conviction of a felony or any crime
involving moral turpitude, fraud, dishonesty or misrepresentation, as evidenced
by a binding and final judgment, order or decree of a court of competent
jurisdiction; (3) the commission by the Employee of any act which could
reasonably be expected to materially injure the reputation, business, or
business relationships of the Company or Related Entities; or (4) any material
breach by Employee of this Agreement. The Company may terminate this Agreement
with cause as defined in clauses (1), (2), (3) and (4) above upon ten (10) days
prior written notice (the "Cause Notification Period") to Employee, but such
termination shall only become effective in the event of Employee's failure to
cure the applicable breach or violation, to the reasonable satisfaction of
Company, prior to the end of the Cause Notification Period. The Company may
terminate this Agreement without notice at any time with Cause as defined in
clause (3) above. In the event of a termination with Cause, the Company shall be
relieved of all its obligations to the Employee provided for by this Agreement,
and all payments to the Employees hereunder shall immediately cease and
terminate.
(d) Involuntary Termination by Employee. The Employee
may terminate his employment hereunder upon (i) a Change of Control of the
Company (as defined in Appendix A), (ii) a good faith determination by the
Employee that there has been a material breach of the Agreement by the Company,
(iii) a material adverse change in the Employee's working conditions or status
or (iv) a significant relocation of the Employee's principal office (any one of
the preceding constituting "Good
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Reason"), by delivering written notice of termination to the Company indicating
in reasonable detail the facts and circumstances alleged to provide a basis for
such termination and shall cease performing the Employee's duties hereunder on
the date which is ten (10) days after delivery of the notice, which date shall
also be the date of termination of the Employee's employment.
(e) Voluntary Termination by Employee. The Employee
agrees to provide the Company with at least twenty (20) business days
("Termination Notice Period") prior written notice of his intent to terminate
employment voluntarily. Failure to provide such notice terminates the Employee's
entitlement to payment of accrued, unused benefits, such as vacation. However,
the Company reserves the right to terminate the Employee before the end of the
Termination Notice Period, provided that the Company pays the Employee the
salary that he would have received from the date of the last payroll payment to
the end of the Termination Notice Period. During the Termination Notice Period,
the Employee agrees to make a good faith effort to perform the duties described
hereunder. If, during the Term, the Employee's voluntarily terminates his
employment with the Company, the Company's obligations, including payment
obligations, under this Agreement shall cease, except that the Company shall pay
the Employee the amount of base salary that he would have received from the date
of the last payroll payment to the end of the Termination Notice Period.
(f) Severance Payment. In the event of a termination
of the Employee's employment (i) by the Company other than for Cause or (ii) by
the Employee in a manner which satisfies Section 5(d), the Company shall pay the
Employee (subject to the provisions of Section 6 of this Agreement) a one-time,
lump-sum severance payment equal TWO to 2 times the sum of (A) the Employee's
annual base salary in effect at the time of such termination and (B) the
Employee's average annual bonus and other compensation for the TWO (2) full
calendar years immediately preceding such termination ("Severance Payment"). The
Severance Payment shall be paid to the Employee in cash equivalent not later
than ten (10) business days after the date of termination of the Employee's
employment, subject to the provisions of Section 6 of this Agreement.
(g) Benefits. The following shall apply upon
termination of the Employee's employment:
(i) Notwithstanding anything to the contrary
herein contained, the Employee shall receive all compensation and other
benefits to which he was entitled under this Agreement or otherwise as
an employee of the Company through the termination date, including
payments of base salary accrued hereunder through the calendar month in
which such termination occurs.
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6. TAX PROVISIONS.
(a) No Excess Parachute Payment. It is the intention
of the Company and the Employee that no portion of the Severance Payment or any
other payment or benefit under this Agreement, or payments to or for the benefit
of the Employee under any other agreement or plan (collectively, the "Severance
Benefits") be deemed to be an excess parachute payment as defined in Section
280G of the Internal Revenue Code of 1986, as amended (the "Code") or any
successor provision thereto. Notwithstanding any other provision of this
Agreement, if any portion of the Severance Benefits would constitute a parachute
payment within the meaning of Section 280G of the Code, such Severance Benefits
shall be reduced to an amount equal to One Dollar ($1.00) less than the maximum
amount which the Employee may receive without becoming subject to the tax
imposed by Section 4999 of the Code (or any successor provision) or which the
Company may pay without loss of deduction under Section 280G(a) of the Code (or
any successor provision).
(b) Opinion. For purposes of this Section, within
sixty (60) days after delivery of a written notice of termination by the
Employee or by the Company pursuant to this Agreement or written notice by the
Company to the Employee of its belief that there is a payment or benefit due the
Employee which will result in an excess parachute payment as defined in Section
280G of the Code or any successor provision thereto, the Employee and the
Company shall obtain, at the Company's expense, the opinion (which need not be
unqualified) of nationally recognized tax counsel ("Tax Counsel") selected by
the Company's independent auditors and acceptable to the Employee, which sets
forth (A) the "base amount" within the meaning of Section 280G; (B) the
aggregate present value of the payments in the nature of compensation to the
Employee as prescribed in Section 280G(b)(2)(A)(ii); and (C) the amount and
present value of any "excess parachute payment" within the meaning of Section
280G(b)(1). If such an opinion of Tax Counsel is sought, no portion of the
Severance Payment shall be paid to the Employee by the Company until ten (10)
days after the opinion is obtained.
In the event that such opinion determines that there would be
an excess parachute payment, the Severance Benefits shall be reduced or
eliminated as specified by the Employee in a written notice delivered to the
Company within thirty (30) days of his receipt of such opinion or, if the
Employee fails to so notify the Company then as the Company shall reasonably
determine, so that under the bases of calculation set forth in such opinion
there will be no excess parachute payment. For purposes of such opinion, the
value of any noncash benefits or any deferred payment or benefit shall be
determined by the Company's independent auditors in accordance with the
principles of Sections 280G, which determination shall be evidenced in a
certificate of such auditors addressed to the Company and the Employee. Such
opinion shall be dated as of the date of termination of the Employee's
employment and addressed to the Company and the Employee and shall be binding
upon the Company and the Employee.
The provisions of this Section 6(b), including the
calculations, notices and opinions provided for herein shall be based upon the
conclusive presumption that the compensation earned by the Employee pursuant to
the Company's compensation programs prior to a change of control is reasonable,
provided, however, that in the event such Tax Counsel so requests in connection
with the opinion required by this Section 6(b), the Company shall obtain at its
expense, and Tax Counsel may rely on in providing the opinion, the advice of a
firm of recognized Employee compensation consultants as to the reasonableness of
any item of compensation to be received by the Employee.
(c) Ruling. The Employee shall have the right to
request that the Company obtain a ruling from the Internal Revenue Service
("IRS") as to whether any or all payments or benefits determined by such Tax
Counsel are, in the view of the IRS, "parachute payments" under Section 280G. If
a ruling is sought pursuant to the Employee's request, no Severance Benefits
payable under this
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Agreement in excess of the Section 280G limitation shall be made to the Employee
until after fifteen (15) days from the date of such ruling; however, Severance
Benefits shall continue to be paid during the time up to the amount of that
limitation. For purposes of this Section 6, the Employee and the Company shall
agree to be bound by the IRS's ruling as to whether payments constitute
"parachute payments" under Section 280G. If the IRS declines, for any reason, to
provide the ruling requested, the Tax Counsel's opinion shall control and the
period during which the Severance Benefits may be deferred shall be extended to
a date fifteen (15) days from the date of the IRS's notice indicating that no
ruling would be forthcoming.
(d) Effect of Change in Law. In the event that the
provisions of Sections 280G and 4999 of the Code (or any successor provisions)
are repealed, this Section 6 shall cease to be effective on the effective date
of such repeal. The parties to this Agreement recognize that final regulations
promulgated under Section 280G of the Code may affect the amounts that may be
paid under this Agreement and agree that, upon issuance of such final
regulations, this Agreement may be modified as the parties hereto may in good
xxxxx xxxx necessary in light of the provisions of such regulations to achieve
the purposes of this Agreement, and that consent to such modification shall not
be unreasonably withheld.
7. ADDITIONAL PAYMENT.
(a) If, notwithstanding the provisions of Section 6
of this Agreement, it is ultimately determined by a court or pursuant to a final
determination by the IRS that any portion of the Severance Benefits is subject
to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any
successor provision), then the Company shall pay to the Employee an additional
amount (the "Gross-Up Payment") such that the net amount retained by the
Employee, after deduction of (i) any Excise Tax; (ii) any federal, state or
local income tax, interest charges or penalties arising in respect of the
imposition of such Excise Tax; and (iii) any federal, state or local income tax
or Excise Tax imposed upon the payment provided for by this Section 7, shall be
equal to the Severance Benefits. For purposes of determining the amount of the
Gross-Up Payment, the Employee shall be deemed to pay federal income taxes at
the highest marginal rate of federal income taxation in the calendar year in
which the Gross-Up Payment is to be made and state and local income taxes at the
highest marginal rates of taxation in the state and locality of the Employee's
domicile for income tax purposes on the date the Gross-Up Payment is made, net
of the maximum reduction in federal income taxes that could be obtained from
deduction of such state and local taxes.
(b) If legislation is enacted that would require the
Company's stockholders to approve this Agreement, prior to a Change in Control,
due solely to the provision contained in subsection (a) of this Section 7, then
(i) from and after such time as stockholder approval would be required, until
stockholder approval is obtained as required by such legislation, subsection (a)
shall be of no force and effect; (ii) if the Company seeks stockholder approval
of any other agreement providing similar benefits to any other Employee of the
Company, the Company shall seek stockholder approval of this Agreement at the
same stockholders meeting or meetings at which the stockholders consider any
such other agreement; and (iii) the Company and the Employee shall use their
best efforts to consider and agree in writing upon an amendment to this Section
7 such that, as amended, such Section would provide the Employee with the
benefits intended to be afforded to the Employee by subsection (a) without
requiring stockholder approval.
8. SUCCESSORS.
(a) If the Company sells, assigns or transfers all or
substantially all of its business and assets to any Person or if the Company
merges into or consolidates or otherwise combines (where the
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Company does not survive such combination) with any Person (any such event, a
"Sale of Business"), then the Company shall assign all of its right, title and
interest in this Agreement as of the date of such event to such Person, and the
Company shall cause such Person, by written agreement in form and substance
reasonably satisfactory to the Employee, to expressly assume and agree to
perform from and after the date of such assignment all of the terms, conditions
and provisions imposed by this Agreement upon the Company. Failure of the
Company to obtain such agreement prior to the effective date of such Sale of
Business shall be a material breach of this Agreement. In case of such
assignment by the Company and of assumption and agreement by such Person, as
used in this Agreement, "Company" shall thereafter mean such Person which
executes and delivers the agreement provided for in this Section 8 or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law, and this Agreement shall inure to the benefit of, and be
enforceable by, such Person. The Employee shall, in the Employee's discretion,
be entitled to proceed against any or all of such Persons, any Person which
theretofore was such a successor to the Company (as defined in the first
paragraph of this Agreement) and the Company (as so defined) in any action to
enforce any rights of the Employee hereunder. Except as provided in this
Subsection, this Agreement shall not be assignable by the Company. This
Agreement shall not be terminated by the voluntary or involuntary dissolution of
the Company.
(b) This Agreement and all rights of the Employee
shall inure to the benefit of and be enforceable by the Employee's personal or
legal representatives, executors, administrators, heirs and beneficiaries. All
amounts payable to the Employee under Sections 3, 5, and 7 of this Agreement if
the Employee had lived shall be paid, in the event of the Employee's death, to
the Employee's estate, heirs and representatives; provided, however, that the
foregoing shall not be construed to modify any terms of any benefit plan of the
Company, as such terms are in effect on the date of the Employee's death, that
expressly govern benefits under such plan in the event of the Employee's death.
9. SEVERABILITY. The provisions of this Agreement shall
be regarded as divisible, and the parties agree that if any of said provisions
or any part hereof shall under any circumstances be deemed or declared invalid,
inoperative or unenforceable, then the validity and enforceability of the
remainder of such provisions or parts hereof and the applicability thereof shall
not be affected thereby.
10. AMENDMENT. This Agreement may not be amended or
modified at any time except by written instrument executed by the Company and
the Employee.
11. WITHHOLDING. The Company shall be entitled to
withhold from amounts to be paid to the Employee hereunder any federal, state or
local withholding or other taxes or charges which it is from time to time
required to withhold; provided, that the amount so withheld shall not exceed the
minimum amount required to be withheld by law (unless the Employee has otherwise
indicated in writing). The Company shall be entitled to rely on an opinion of
nationally recognized tax counsel if any question as to the amount or
requirement of any such withholding shall arise.
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12. NOTICE. For purposes of this Agreement, notices and
all other communications provided for herein shall be in writing and shall be
deemed to have been duly given when actually received, whether hand-delivered,
sent by telecopier, facsimile transmission or other electronic means of
transmitting written documents (as long as receipt is acknowledged) or mailed by
United States certified or registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Employee, to:
Xxxxx X. Xxxxxxxxxxx
000 Xxxxxxx Xxxxx Xxxxxx
Xxxxxxx, Xx 00000
000-000-0000
If to the Company, to:
Xxxxxxxx Financial, Inc.
0000 XxXxxxxx Xxxxx Xxxx
Xxxxxxxx X
Xxxxxxxxxx, Xxxxxxx 00000
Attn: President
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that a notice of change of address shall
be effective only upon receipt.
13. NO WAIVER; ENTIRE AGREEMENT. No waiver by any party
hereto of any breach of this Agreement by any other party hereto shall be deemed
a waiver of any similar or dissimilar term or condition at the same or at any
prior or subsequent time. This Agreement is the entire agreement between the
parties hereto with respect to the Employee's employment by the Company and
there are no agreements or representations, oral or otherwise, expressed or
implied, with respect to or related to the employment of the Employee which are
not set forth in this Agreement.
14. NO ASSIGNMENT. Except as expressly set forth herein,
no party shall assign any of his or its rights under this Agreement without the
prior written consent of the other party and any attempted assignment without
such prior written consent shall be null and void and without legal effect.
15. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement
may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. This Agreement may be effective upon the execution and delivery by
any party hereto of facsimile copies of signature pages hereto duly executed by
such party; provided, however, that any party delivering a facsimile signature
page covenants and agrees to deliver promptly after the date hereof two (2)
original copies to the other party hereto.
16. GOVERNING LAW.
(a) The validity, interpretation, construction and
performance of this Agreement shall be governed by the internal laws of the
State of Florida, except that Section 16(b) shall be construed
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in accordance with the Federal Arbitration Act if arbitration is chosen by the
Employee as the method of dispute resolution.
(b) Any dispute arising out of this Agreement shall,
at the Employee's election, be determined by either (i) arbitration under the
rules of the American Arbitration Association then in effect (but subject to any
evidentiary standards set forth in this Agreement), in which both parties shall
be bound by the arbitration award, or (ii) by litigation. Whether the dispute is
to be settled by arbitration or litigation, the venue for the arbitration or
litigation shall be Tampa, Florida. The parties consent to personal jurisdiction
in each trial court in the selected venue having subject matter jurisdiction
notwithstanding their residence or situs, and each party irrevocably consents to
service of process in the manner provided hereunder for the giving of notices.
17. CERTAIN RULES OF CONSTRUCTION. No party shall be
considered as being responsible for the drafting of this Agreement for the
purpose of applying any rule construing ambiguities against the drafter or
otherwise. No draft of this Agreement shall be taken into account in construing
this Agreement. Any provision of this Agreement which requires an agreement in
writing shall be deemed to require that the writing in question be signed by the
Employee and an authorized representative of the Company.
18. HEADINGS. The headings herein contained are for
reference only and shall not affect the meaning or interpretation of any
provision of this Agreement. IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first above written.
XXXXXXXX FINANCIAL, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, Chairman of the Board,
President and Chief Employee Officer
EMPLOYEE:
/s/ Xxxxx X. Xxxxxxxxxxx
-------------------------------------------
Printed Name: Xxxxx X. Xxxxxxxxxxx
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APPENDIX A
For purposes of Section 5(d) of this Agreement, a Change of
Control shall be deemed to have occurred if the event set forth in any one of
the following paragraphs shall have occurred:
(i) any person or entity, or group thereof
acting in concert (a "Person") (other than (A) the Company or any of
its subsidiaries, (B) a trustee or other fiduciary holding securities
under any employee benefit plan of the Company or any of its
subsidiaries, (C) an underwriter temporarily holding securities
pursuant to an offering of such securities or (D) a corporation owned,
directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock in the
Company), being or becoming the "beneficial owner" (as such term is
defined in Securities and Exchange Commission ("SEC") Rule 13d-3 under
the Exchange Act) of securities of the Company which, together with
securities previously owned, confer upon such person, entity or group
the combined voting power, on any matters brought to a vote of
shareholders, of twenty percent (20%) or more of the then outstanding
shares of voting securities of the Company; or
(ii) the sale, assignment or transfer of assets
of the Company or any subsidiary or subsidiaries, in a transaction or
series of transactions, if the aggregate consideration received or to
be received by the Company or any such subsidiary in connection with
such sale, assignment or transfer is greater than fifty percent (50%)
of the book value, determined by the Company in accordance with
generally accepted accounting principles, of the Company's assets
determined on a consolidated basis immediately before such transaction
or the first of such transactions; or
(iii) the merger, consolidation, share exchange or
reorganization of the Company (or one or more direct or indirect
subsidiaries of the Company) as a result of which the holders of all of
the shares of capital stock of the Company as a group would receive
less than fifty percent (50%) of the combined voting power of the
voting securities of the Company or such surviving or resulting entity
or any parent thereof immediately after such merger, consolidation,
share exchange or reorganization; or
(iv) the adoption of a plan of complete
liquidation or the approval of the dissolution of the Company; or
(v) the commencement (within the meaning of SEC
Rule 13e-4 under the Exchange Act) of a tender or exchange offer which,
if successful, would result in a Change of Control of the Company; or
(vi) a determination by the Board of Directors of
the Company, in view of the then current circumstances or impending
events, that a Change of Control of the Company has occurred or is
imminent, which determination shall be made for the specific purpose of
triggering the operative provisions of this Agreement.
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