EXHIBIT 10.70
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of the
24th day of January, 2002, by and between Syndicated Food Service International,
Inc. ("Employer"), a Florida corporation, and XXXXXXX X. XXXXXX (the
"Executive").
WHEREAS, the Employer desires to employ the Executive on the terms and
conditions set forth herein and the Executive desires to be so employed by
Employer.
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants herein contained, it is agreed as follows:
1. EMPLOYMENT. The Employer hereby agrees to employ the Executive
and the Executive hereby agrees to be employed by the Employer upon the terms
and conditions herein set forth. This Agreement shall supercede any previous
agreement, whether oral or written, for employment of the Executive by the
Employer.
2. TERM. Employment shall be for a term commencing on the date
hereof and, subject to earlier termination under Section 8 hereof, expiring five
(5) years from the date hereof (the "Initial Term"). Notwithstanding the
previous sentence, this Agreement and the employment of the Executive shall be
automatically renewed (subject to Section 8) for successive one-year periods
upon the terms and conditions set forth herein, commencing on the fifth
anniversary of the date of this Agreement, and on each anniversary date
thereafter, unless either party to this Agreement gives the other party written
notice (in accordance with Section 17) of such party's intention to terminate
this Agreement after the Initial Term and the employment of the Executive at
least twelve months prior to the end of such Initial or extended Term. For
purposes of this Agreement, any reference to the Term of this Agreement shall
include the Initial Term and any extension thereof.
3. DUTIES OF THE EXECUTIVE. The Executive shall serve as the
Chief Executive Officer ("CEO"), and as such, shall have primary responsibility
for oversight, management and general operation of all of the food service
distribution and manufacturing operations of the Employer and its direct or
indirect subsidiaries and shall otherwise be assigned only executive policy and
management duties. The Executive shall report solely to the Employer's Chairman
of the Board ("Chairman") and the Employer's Board of Directors (the "Board")
and shall be assigned only those duties that are consistent with the Executive's
position as CEO of the Employer. The Executive shall devote substantially all of
his normal working time and his best efforts, full attention and energies to the
Employer's food service distribution business and its direct or indirect
subsidiaries. The Employer shall cause the Executive to be elected as a member
of its Board throughout the Term of this Agreement, and shall include him in the
slate for election as a director at every stockholders' meeting at which his
term as a director would otherwise expire. The Executive may not serve as an
officer or director of, make investments in, or otherwise participate in, any
other entity without the prior written consent of
the Board; provided, that the foregoing shall not be deemed to prohibit the
Executive from acquiring, directly or indirectly, solely as an investment, not
more than two percent (2%) of any class of securities of any entity which are
registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934,
as amended, including the regulations issued thereunder; and provided further,
that as long as it does not interfere with the Executive's employment, the
Executive may (a) serve as an officer, director or otherwise participate in
purely educational, social, religious and civic organizations, and (b) manage
personal and family investments.
4. COMPENSATION.
(a) The Employer shall pay to the Executive a base salary of not
less than (i) $125,000 (One Hundred and Twenty Five Thousand Dollars) per annum
during year one (1) of the Term of this Agreement, and (ii) $250,000 (Two
Hundred and Fifty Thousand Dollars) per annum in years two (2) through five (5)
of the Term of this Agreement, which base salary may be increased (but not
decreased) from time to time by the Board in its sole discretion, payable at the
times and in the manner consistent with the Employer's general policies
regarding compensation of executive employees. The Employer shall make available
to the Executive a bonus plan equal to 100% of the Executive's base salary,
with 50% guaranteed in year two and three. Said bonus may be accepted by the
Executive in the form of stock or cash at the Executive's sole discretion. Such
base salary shall include any salary reduction contributions to (i) any
Employer-sponsored plan that includes a cash-or-deferred arrangement under
Section 401(k) of the Internal Revenue Code (the "Code"), (ii) any other plan of
deferred compensation sponsored by the Employer, or (ii) any Employer-sponsored
"cafeteria plan" under Section 125 of the Code. The Board may from time to time
authorize such additional compensation to the Executive, in cash or in property,
as the Board may determine in its sole discretion to be appropriate.
(b) In addition to the compensation set forth in (a) above, the
Executive shall have the right to receive 300,000 shares of the Employer's
restricted common stock (the "Shares") on each of the 1st, 2nd, 3rd, 4th and 5th
anniversaries of this Agreement for a total of 1,500,000 Shares subject to his
compliance with the terms and conditions set forth in Appendix A, attached
hereto and made a part hereof which sets forth certain specific performance
criteria to be met by the executive to receive Shares. In the event that the
Executive voluntarily terminates his employment in accordance with Section 8(b)
of this Agreement, the Employer shall have the option to purchase, in its sole
discretion, all of the Shares then owned by the Executive by written notice
delivered within 30 days of the termination date to the Executive indicating the
Employer's intent to do so at the current market price per share times the
number of Shares to be purchased.
(c) If the Board authorizes cash incentive compensation under a
Senior Executive Incentive Plan or such other management incentive program or
such plan, program or arrangement under the terms and conditions applicable to
the Executive (the Executive's maximum bonus shall be 100% of his annual salary)
and management employees; provided,
however, that (i) the cash incentive compensation paid to the Executive for the
Employer's 2001 fiscal year shall be in an amount not less than 50% of the
Executive's annual base salary earned for the applicable period, and (ii) the
cash incentive compensation paid to the Executive for the Employer's 2002 fiscal
year shall be in an amount not less than 50% of the Executive's annual base
salary earned for the applicable period.
(d) If the Board authorizes any grants under an employee stock
option plan which may be in effect from time to time, the Executive shall
participate in any such award in a manner commensurate with the Executive's
position and level of responsibility of other executive and management employees
of the Employer as determined by the Board in its sole discretion; provided that
the Executive shall vest in any such award on the same basis as other executive
and management employees.
(e) Nothwithstanding anything in this Agreement to the contrary,
any shares of common stock issued to Executive by Employer as compensation for
services under this Section 4 of the Agreement, whether upon exercise of vested
stock options or otherwise, shall be deemed earned by Employee and not subject
to cancellation by Employer.
5. EXECUTIVE BENEFITS.
(a) In addition to the compensation described to Section 4, the
Employer shall make available to the Executive, subject to the terms and
conditions of the applicable plans, if any, including without limitation, the
eligibility rules, participation for the Executive and his eligible dependents
in the Employer-sponsored employee benefit plans or arrangements, including
payment by Employer of 100% of all health insurance premiums for the executive
and his dependents, and such other usual and customary benefits now or hereafter
generally available to employees of the Employer.
(b) The Employer shall make available to the Executive such
benefits and perquisites as may be made available to senior executives of the
Employer, including, without limitation, equity and cash incentive programs and
supplemental retirement, deferred compensation and welfare plans.
(c) The Employee shall be entitled to five (5) weeks annual
vacation during the Term of this Agreement and renewals hereof.
(d) In addition to any life insurance coverage made available to
the Executive under Section 5 (a), the Employer shall provide to the Executive,
as the owner of the contract (or, alternatively, to his designee as the owner) a
term life insurance contract on the Executive's life in an amount not less than
$1,000,000 and to reimburse the Executive, on an after-tax basis, for the cost
of such insurance.
(e) In addition, the Employer will make available to the Executive
at no cost any and all club memberships he deems necessary for completion of his
duties, a new Employer automobile of the Executive's choosing and either
chartered aircraft or other forms of air transportation deemed necessary for the
Executive to perform his duties in a timely manner, all such benefits to be
provided in an effort to maximize the wealth of the Employer's shareholders.
(f) Promptly following execution of this Agreement by the Employer
and the Executive, the Employer shall apply for, obtain and maintain Director
and Officer insurance in an amount reasonably satisfactory to the Executive.
6. EXPENSES. The Employer shall pay or reimburse the Executive
for reasonable and necessary expenses incurred by the Executive in connection
with his duties performed on behalf of the Employer in accordance with the
general policies of the Employer. This shall include, but not be limited to,
club dues to various organizations where customers, vendors or other business
partners are entertained.
7. PLACE OF PERFORMANCE. In connection with his employment by the
Employer, unless otherwise agreed by the Executive, the Executive shall be based
at offices of the Employer located in Daytona Beach, Florida, except for travel
reasonably required for the Employer's business.
8. TERMINATION.
(a) Voluntary Termination. The Executive may voluntarily terminate
the Agreement at any time by written notice to the Employer as provided in
Section 17. The Executive's death during the term of the Agreement shall
constitute a voluntary termination of employment for purposes of eligibility for
Termination Payments and Benefits as provided in Section 9.
(b) Involuntary Termination. The Executive's employment hereunder
may be terminated by the Employer for any reason by written notice as provided
in Section 17 hereof. The Executive's Disability (as defined herein) during the
Term of the Agreement shall constitute an involuntary termination of employment
hereunder, unless the Board expressly extends such employment for a specified
time thereafter. The Executive will be treated for purposes of this Agreement as
having been involuntarily terminated by the Employer if the Executive terminates
his employment with the Employer under the following circumstances:
(i) The Employer has breached any material provision of
this Agreement and within 30 days of such breach, the Executive delivers written
notice thereof to the Employer and the Employer fails to cure such breach within
a reasonable time thereafter; (ii) there has been a material reduction in the
Executive's authority, functions, duties or responsibilities as provided in
Section 3 which such reduction is not the result of any material breach of the
terms of this Agreement by the Executive or the result of any action taken by
the Employer; (iii) a successor or assign(other than through a change of name of
the Employer, whether direct or indirect, by
purchase, merger, consolidation or otherwise, to all or substantially all of the
business and/or assets of the Employer fails to assume liability under this
Agreement; (iv) the Employer's relocation of the Executive, his family and
residence, his offices or the principal place where he is required to perform
his duties hereunder from Daytona Beach, Florida unless otherwise agreed to by
the Executive; or (v) the consistent but good faith refusal of the Executive,
after appropriate efforts by the parties, to endorse the Employer's strategic
plan as presented from time to time by the Employer's Chairman and adopted by
the Board, such that a reasonable executive would conclude that the parties hold
irreconcilable differences in vision and direction for the Employer.
(c) Termination for Cause. For purposes of this Agreement, "Cause"
shall mean:
(i) the willful and continued failure, (which is defined
as a twelve (12) month period with no improvement,
the Employer has complied with all of the terms and
conditions of this Agreement and has in good faith
provided the necessary resources for the Executive to
perform his duties during such time and on a timely
basis and the Employer's actions have shown not to be
injurious to the Executive's performance) by the
Executive to substantially perform his duties
hereunder (other than any such failure resulting from
the Executive's incapacity due to physical or mental
illness), after demand for substantial performance is
delivered in writing in accordance with Section 17
herein, by the Employer that specifically identifies
the manner in which the Employer believes the
Executive has not substantially performed his duties,
(ii) the willful engaging by the Executive in any
misconduct which is materially injurious to the
Employer, monetarily or otherwise, or
(iii) the material breach of the Executive's
representations and warranties set forth in this
Agreement, including, but not limited to, those
contained in his Confidentiality and Non-Solicitation
Agreement set forth in Section 10 herein.
No act, or failure to act, on the Executive's part shall be considered
"willful" unless done, or omitted to be done, by him not in good faith and
without reasonable belief that his action or omission was in the best interest
of the Employer. Notwithstanding the foregoing, the Executive shall not be
deemed to have been terminated for Cause without (x) reasonable notice to the
Executive setting forth the reasons for the Employer's intention to terminate
for Cause, (y) an opportunity for the Executive, together with his counsel, to
be heard before the Employer's Board of Directors, and (z) delivery to the
Executive of a written notice of termination from the Board in the manner set
forth in Section 17 herein, stating that in the good faith opinion of the Board,
the Executive was guilty of conduct set forth above in clause (i), (ii) or (iii)
hereof, and specifying the particulars thereof in reasonable detail.
5. Subject to Section 9 and any benefit continuation requirements
of applicable laws, in the event the Executive's employment hereunder is
voluntarily or involuntarily terminated other than for Cause as defined herein,
the compensation and benefits obligations of the Employer under Sections 4 and 5
shall cease as of the effective date of such termination, except for any
compensation and benefits earned or accrued but unpaid through such date.
(e) In the event that the Executive's employment
hereunder is voluntarily or involuntarily terminated for any reason whatsoever,
the Executive shall be released from any and all personal guarantees by the
Employer and the beneficiary or beneficiaries of such personal guarantees before
any such termination is effective.
9. TERMINATION PAYMENTS AND BENEFITS. If the Executive's
employment hereunder is involuntarily terminated by the Employer as set forth in
Section 8 (a) hereof, other than for Cause prior to the end of the Term of this
Agreement, then the Employer shall be obligated to pay to the Executive certain
termination payments and make available certain benefits during the Termination
Payment Period (as defined herein), as follows:
(a) Termination Payment Period. Termination payments
shall be made for the greater of (i) the number of years (and fractions thereof)
remaining in the Term of the Agreement, or (ii) three (3) years (the
"Termination Payment Period").
(b) Calculation of Termination Payments. Termination
payments calculated on an annual basis shall equal the sum of (i) the
Executive's highest annual base salary during the three-year period prior to the
Executive's termination (or any lesser period) plus (ii) the Executive's average
annual cash incentive compensation award, including, without limitation, any
award under any Senior Executive Incentive Program or any successor plan
thereto, during the three-year period prior to the Executive's termination (or
any lesser period); provided, however, that any termination payments hereunder
are subject to the provisions of Subsection (g) herein. Notwithstanding anything
to the contrary, if the Executive is terminated during the first year of the
Initial Term, then for the purposes of this Section 9 (b), the calculation of
termination payments shall be based upon an annual base salary of $250,000.
(c) Method of Payment. Termination payments shall be paid
to the Executive in the manner designated by the Executive in his sole
discretion. If the Executive should die while any amounts are still payable to
him hereunder, all such amounts, unless otherwise provided herein, shall be paid
to the Executive's designated beneficiary, or, if none, then to the Executive's
estate.
(d) Benefits. Notwithstanding any provision to the
contrary in any option agreement or other agreement or in any plan, but subject
to all applicable laws, all of the Executive's outstanding stock options shall
immediately become exercisable, and all restrictions on any other equity awards
relating to continued performance of services shall lapse.
(i) During the Termination Payment Period, the Employer
shall use its best efforts to maintain in full force and effect for the
continued benefit of the Executive all employee welfare benefit plans and
perquisite programs in which the Executive was entitled to participate
immediately prior to the Executive's termination, or shall arrange to make
available to the Executive benefits substantially similar to those which the
Executive would otherwise have been entitled to receive if his employment had
not been terminated. Such benefits shall be provided to the Executive on the
same terms and conditions (including employee contributions toward the premium
payments) under which the Executive was entitled to participate immediately
prior to this termination. The Employer does not guarantee a favorable tax
consequence to the Executive for continued coverage and benefits under any
Employer-sponsored plans nor will it indemnify the Executive for such results
except with respect to the life insurance plan made available under Section
5(c).
(ii) Notwithstanding the foregoing, with respect to the
Executive's continued coverage under any Employer's Medical and Dental Plan, or
a successor plan, pursuant to this provision the Executive's "qualifying event"
for purposes of the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA") shall be his termination date.
(iii) Any termination payments hereunder shall not be taken
into account for purposes of any retirement plan or other benefit plan sponsored
by the Employer except as otherwise expressly required by such plans or
applicable law.
(f) Disability Defined. "Disability" shall mean the Executive's
incapacity due to physical or mental illness to substantially perform his duties
on a full-time basis for six (6) consecutive months and within thirty (30) days
after a written notice of termination is thereafter given by the Employer, the
Executive shall not have returned to the full-time performance of the
Executive's duties; provided, however, if the Executive shall not agree with a
determination to terminate him because of Disability, the question of the
Executive's Disability shall be subject to the certification of a qualified
medical doctor agreed to by the Employer and the Executive. In the absence of
agreement between the Employer and the Executive, each party shall nominate a
qualified medical doctor and the two doctors shall select a third doctor, who
shall make the determination as to Disability.
(g) Effect of Long-Term Disability. If the Executive also becomes
entitled to receive benefits under an insured long-term disability insurance
plan ("LTD Plan") now or hereafter paid for by the Employer, then the Executive'
termination benefits under this Agreement (calculated on a monthly basis) shall
be reduced by the amount of the benefits paid under such LTD Plan. No such
reduction shall be made for benefits paid to the Executive under a personal
disability income plan or such other disability income plan paid for by the
Executive, whether or not the plan was obtained through a group-sponsored or
Employer-related program.
(h) No Obligation to Mitigate. The Executive is under no
obligation to mitigate damages or the amount of any payment provided for
hereunder by seeking other employment or
otherwise; provided, however, that the Executive's coverage under the Employer's
welfare benefit plans will terminate when the Executive becomes covered or
eligible for coverage under any employee benefit plan made available by another
employer and covering the same type of benefits. The Executive shall notify the
Employer in writing within thirty (30) days after the commencement of or
eligibility under any such benefits.
(i) Forfeiture. Notwithstanding the foregoing, any right of the
Executive to receive termination payments and benefits hereunder shall be
forfeited to the extent of any amounts payable after any breach of Section
10,11, or 12 by the Executive.
10. CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT.
(a) The Executive acknowledges that in the course of his
employment by the Employer, he will or may have access to and become informed of
confidential and secret information which is a competitive asset of the Employer
(hereinafter "Confidential Information"), including, without limitation, (i) the
terms of any agreement between the Employer and any employee, customer or
supplier, (ii) pricing strategy, (iii) merchandising and marketing methods, (iv)
product development ideas and strategies, (v) personnel training and development
programs, (vi) financial results, (vii) strategic plans and demographic
analyses, (viii) proprietary computer and systems software, and (ix) any
non-public information concerning the Employer, its employees, agents, vendors,
suppliers or customers. The Executive agrees that he will keep all Confidential
Information in strict confidence during the Term of his employment by the
Employer and thereafter, and will never directly or indirectly make known,
divulge, reveal, furnish, make available, or use any Confidential Information
(except in the course of his regular authorized duties on behalf of the
Employer). The Executive agrees that the obligations of confidentiality
hereunder shall survive termination of his employment for any reason whatsoever.
The Executive's obligations under this Section 10 are in addition to, and not in
limitation or preemption of, all other obligations of confidentiality which the
Executive may have to the Employer under general legal or equitable principles.
(b) Except in the ordinary course of the Employer's business, the
Executive has not made, nor shall at any time following the date of this
Agreement, make or cause to be made, any copies, pictures, duplicates,
facsimiles or other reproductions or recordings or any abstracts or summaries
including or reflecting Confidential Information. All such documents and other
property furnished to the Executive by the Employer or otherwise acquired or
developed by the Employer shall at all times be the property of the Employer.
Upon termination of the Executive's employment with the Employer, the Executive
will return to the Employer any such documents or other property of the Employer
which are in the possession, custody or control of the Executive.
(c) Without the prior written consent of the Employer (which may
be withheld for any reason or no reason), except in the ordinary course of the
Employer's business, the Executive shall not at any time following the date of
this Agreement use for the benefit or
purposes of the Executive or for the benefit or purposes of any other person,
firm, partnership, association, trust, venture, corporation or business
organization, entity or enterprise engaged in the "Restricted Business: (as
herein defined), or disclose in any manner to any person, firm, partnership,
association, trust, venture, corporation or business organization, entity or
enterprise engaged in the Restricted Business, any Confidential Information.
"Restricted Business" means any business or division of a business which
consists of the manufacturing or sale for distribution, or the distribution, to
customers that are primarily restaurants, cafes, bars, hotels, schools,
colleges and other institutions (as the word "institution" is customarily
defined in the wholesale grocery business) of (i) processed or bulk food and
other groceries; (ii) restaurant and commercial kitchen supplies (such as paper
products, janitorial supplies, consumable stores and supplies of every kind and
nature); and (iii) restaurant and commercial kitchen equipment (such as
cookware, appliances, glassware, dinnerware, smallwares and similar items), and
likewise includes any business of a kind in whole or in part similar to that
heretofore engaged in or which is engaged in during the Term of this Agreement
by the Employer or any of its subsidiaries.
(d) In the event of the Executive's termination of employment with
the Employer, whether voluntary, involuntary, for Cause or otherwise, the
Executive agrees that he will not in any capacity, on his own behalf or on
behalf of any other firm, person or entity, undertake or assist in the
solicitation of any employee of the Employer, including, but not limited to,
solicitation of any employee to terminate his or her employment with the
Employer.
(e) The Executive acknowledges and agrees that a violation of the
foregoing provisions of this Section 10 (referred to collectively as the
"Confidentiality and Non-Solicitation Agreement") would cause irreparable harm
to the Employer, and that the Employers' remedy at law for any such violation
would be inadequate. In recognition of the foregoing, the Executive agrees that,
in addition to any other relief afforded by law or this Agreement, including
damages sustained by a breach of his Agreement and any forfeitures under Section
9, and without any necessity or proof of actual damages, the Employer shall have
the right to enforce this Agreement by specific remedies, which shall include,
among other things, temporary and permanent injunctions, it being the
understanding of the undersigned parties hereto that damages, the forfeitures
described above and injunctions shall all be proper modes of relief and are not
to be considered as alternative remedies.
11. POST-TERMINATION ASSISTANCE. The Executive agrees that after
his employment with the Employer has terminated for any reason whatsoever, he
will provide, upon reasonable notice, such information and assistance to the
Employer as may reasonably be requested by the Employer in connection with any
litigation in which it or any of its officers, directors, employees, agents,
subsidiaries or affiliates is or may become a party; provided, however, that the
Employer agrees to reimburse the Executive for any related expenses, including
travel expenses.
12. COVENANT NOT TO COMPETE. During the Termination Payment
Period, if the Executive has received or is receiving benefits under Section 9,
the Executive will not,
without the prior written consent of the Employer (which may be withheld for any
reason or no reason), directly or indirectly or by action in concert with
others, own, manage, operate, join, control, be employed by, participate in or
be connected with any business, enterprise or other entity (or the ownership,
management, operation, or control of any such business, enterprise or other
entity) (a "Competing Enterprise") engaged anywhere in the United States in the
Restricted Business or any other principal line of business developed or
acquired by the Employer, its subsidiaries or affiliates during the Term of this
Agreement (the "Other Business").
13. ARBITRATION. Any dispute between the parties under this
Agreement shall be resolved (except as provided below) through informal
arbitration by an arbitrator selected under the rules of the American
Arbitration Association (located in Daytona Beach, Florida) and the arbitration
shall be conducted in that location under the rules of said Association. Each
party shall each be entitled to present evidence and argument to the arbitrator.
The arbitrator shall have the right only to interpret and apply the provisions
of this Agreement and may not change any of its provisions. The arbitrator shall
permit reasonable pre-hearing discovery of facts, to the extent necessary to
establish a claim or a defense to a claim, subject to supervision by the
arbitrator. The determination of the arbitrator shall be conclusive and binding
upon the parties and judgment upon the same may be entered in any court having
jurisdiction thereof. The arbitrator shall give written notice to the parties
stating his determination, and shall furnish to each party a signed copy of such
determination. The expenses of arbitration shall be borne equally by the
Executive and the Employer or as the arbitrator shall otherwise equitably
determine.
Notwithstanding the foregoing, the Employer shall not be required to
seek or participate in arbitration regarding any breach of the Executive's
Confidentiality and Non-Solicitation Agreement contained in Section 10 or the
Covenant Not to Compete contained in Section 12, but may pursue its remedies for
such breach in a court of competent jurisdiction in Daytona Beach, Florida. Any
arbitration or action pursuant to this Section will be governed by and construed
in accordance with the substantive laws of the State of Florida, without giving
effect to the principles of conflict of laws of such State.
14. ENTIRE AGREEMENT. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto, or between
either or both of the parties hereto with respect to the subject matter hereof
and contains all of the covenants and agreements between the parties with
respect to such subject matter. Each party to this Agreement acknowledges that
no representations, inducements, promises, or other agreements, orally or
otherwise, have been made by any party, or anyone acting on behalf of any party,
pertaining to the subject matter hereof, which are not embodied herein, and that
no other agreement, statement or promise pertaining to the subject matter hereof
that is not contained in this Agreement shall be valid or binding on either
party.
15. WITHHOLDING OF TAXES. The Employer may withhold from any
amounts payable under this Agreement all federal, state, city or other taxes as
the Employer is required to withhold pursuant to any law or government
regulation or ruling.
16. SUCCESSORS AND BINDING AGREEMENT.
(a) The Employer will require any successor (other than through a
change of name of the Employer), whether direct or indirect, by purchase,
merger, consolidation, reorganization or otherwise, to all or substantially all
of the business or assets of the Employer, by agreement expressly to assume and
agree to perform this Agreement in the same manner and to the same extent the
Employer would be required to perform if no such succession had taken place.
This Agreement will be binding upon and inure to the benefit of the Employer and
any successor to the Employer, including, without limitation, any persons
acquiring directly or indirectly all or substantially all of the business or
assets of the Employer whether by purchase, merger, consolidation,
reorganization or otherwise (and such successor shall thereafter be deemed the
"Employer" for the purposes of this Agreement), but will not otherwise be
assignable, transferable or delegable by the Employer. If the Employer is
acquired by a successor as previously stated in this paragraph and the successor
Employer, either directly or indirectly with Cause or without Cause, terminates
this Agreement within the remaining Term of this Agreement, the successor will
pay a penalty equal to five (5) times the amount defined in Section 9 (b)
hereof.
(b) This Agreement will inure to the benefit of and be enforceable
by the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees and legatees.
(c) This Agreement is personal in nature and neither of the
parties hereto shall, without the consent of the other, assign, transfer or
delegate this Agreement or any rights or obligations hereunder except as
expressly provided in Section 9(c), Section 18(a) and Section 16(b) hereof.
Without limiting the generality or effect of the foregoing, the Executive's
right to receive payments hereunder will not be assignable, transferable or
delegable, whether by pledge, creation of a security interest, or otherwise,
other than by a transfer by the Executive's will or by the laws of descent and
distribution and, in the event of any attempted assignment or transfer contrary
to this Section 16 (c), the Employer shall have no liability to pay any amount
so attempted to be assigned, transferred or delegated.
17. NOTICES. For all purposes of this Agreement, all
communications, including, without limitation, notices, consents, requests or
approvals, required or permitted to be given hereunder will be in writing and
will be deemed to have been duly given when hand delivered or dispatched by
electronic facsimile transmission (with receipt thereof confirmed), five (5)
business days after having been mailed by United States registered or certified
mail, return receipt requested, postage prepaid, or one (1) business day after
having been sent by a nationally
recognized overnight courier service such as Federal Express, UPS, or Airborne
Express, addressed to the Employer (to the attention of the Secretary of the
Employer) at its principal executive offices and to the Executive at his
principal residence, or to such other address as any party may have furnished to
the other in writing and in accordance herewith except that notices of changes
of address shall be effective only upon receipt.
18. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement will be governed by and construed in accordance
with the substantive laws of the State of Florida, without giving effect to the
principles of conflict of laws of such State.
19. VALIDITY. If any provision of this Agreement or the
application of any provision hereof to any person or circumstances is held
invalid, unenforceable or otherwise illegal, the remainder of this Agreement and
the application of such provision to any other person or circumstance will not
be affected, and the provision so held to be invalid, unenforceable or otherwise
illegal will be reformed to the extent (and only to the extent) necessary to
make it enforceable, valid or legal.
20. SURVIVAL OF PROVISIONS. Notwithstanding any other provision of
this Agreement, the parties' respective rights and obligations under Sections
9,10,11,13 and 21 will survive any termination or expiration of this Agreement
or the termination of the Executive's employment for any reason whatsoever.
21. LEGAL FEES AND EXPENSES. Without regard to whether the
Executive prevails, in whole or in part, in connection therewith, the Employer
will pay and be financially responsible for 100% of any and all reasonable
attorneys' and related fees and expenses incurred by the Executive in connection
with any dispute associated with the interpretation, enforcement or defense of
Executive's rights under this Agreement by litigation or otherwise, provided
that, in regard to such dispute, the Executive has not breached this Agreement,
acted in bad faith or has no colorable claim of success on the merits of any
such dispute.
22. MISCELLANEOUS. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and the Employer. No waiver by either party
hereto at any time of any breach by the other party hereto or compliance with
any condition or provision of this Agreement to be performed by such other party
will be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. Unless otherwise noted, references to
"Sections" are to Sections of this Agreement. The captions used in this
Agreement are designed for convenient reference only and are not to be used for
the purpose of interpreting any provision of this Agreement.
23. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereof have executed this Agreement as
of the day and year first written.
EXECUTIVE:
By:______________________________________
Xxxxxxx X. Xxxxxx
Date executed:___________________________
EMPLOYER:
By: /s/ Xxxx Xxxxxxxxx
-------------------------------------
Xxxx Xxxxxxxxx
Chairman of the Board
Date executed: 1/30/2002
APPENDIX A
Performance Criteria to be met for the Issuance of Shares
in Accordance with Section 4(b) of the Employment Agreement
Syndicate\Xxxxxx employment agreement
UNLIMITED CONTINUING
GUARANTY
MONROE BANK
III SOUTH LINCOLN
XXXXXXXXXXX, XX 00000
000-000-0000 (LENDER)
GUARANTOR BORROWER
XXXXXXX X. XXXXXX SYNDICATED BLOOMINGTON I LLC
ADDRESS ADDRESS
000 XXXXXXX XXXX 113 000 XX XXXXXXX XXXXX
XXXXX XXXXXXX, XX 00000 XXX XXXX, XX 00000
TELEPHONE NO. IDENTIFICATION NO. TELEPHONE NO. IDENTIFICATION NO.
407/000-0000 ###-##-#### 407/361-6782
1. CONSIDERATION. This Guaranty is being executed to induce Lender
indicated above to enter into one or more loans or other financial
accommodations with or on behalf of Borrower.
2. GUARANTY. Guarantor hereby unconditionally guarantees the prompt and
full payment and performance, and promises to pay all of Borrower's present and
future, joint and/or several, direct and indirect, absolute and contingent,
express and implied, indebtedness, liabilities, obligations and covenants
(cumulatively "indebtedness") to Lender when due (whether upon maturity or by
demand, acceleration or otherwise). Guarantor's liabilities and obligations
under this Guaranty ("Obligations") shall be unlimited and shall includes all
present and future written agreements between Borrower and Lender (whether
executed for the same or different purposes than the foregoing), evidencing the
indebtedness, together with all interest and all of Lender's expenses and costs,
including but not limited to reasonable attorney's fees incurred in connection
with the indebtedness, including any repeated amendments, extensions,
modifications, renewals, replacements or substitutions thereto, including but
not limited to the following indebtedness:
INTEREST PRINCIPAL AMOUNT/ FUNDING/ MATURITY CUSTOMER LOAN
RATE CREDIT LIMIT AGREEMENT DATE DATE NUMBER NUMBER
-------- ----------------- -------------- -------- -------- ---------
VARIABLE $2,625,000.00 01/25/02 01/25/22 517043177
3. SECURITY INTEREST. LJ K checked, the Obligations under this Guaranty
are secured by a lien on or security interest in the property described in the
documents executed in connection with this Guaranty as well as any other
property designated as security for this Guaranty now or in the future.
4. ABSOLUTE AND CONTINUING NATURE OF GUARANTY. Guarantor's Obligations
are absolute and continuing and shall not be affected or impaired if Lender
repeatedly and unconditionally amends, renews, extends, compromises, exchanges,
fails to exercise or perfect rights in. Impairs or releases any collateral or
any of the indebtedness owed by any Borrower. Co-guarantor or third party (even
if such impairs Guarantor's rights of subrogation) to Lender or any of Lender's
rights against any Borrower, Co-guarantor, third party, or collateral. In
addition, the Obligations shall not be affected or impaired by the discharge
(including but not limited to any inability to collect a deficiency judgment
against) death, incompetency, termination, dissolution, insolvency, business
cessation, or other financial deterioration of any Borrower, Guarantor, or third
party or by any state of facts or the happening from time to time of any event.
including without limitation: The invalidity, irregularity, illegality or
unenforceability of, or any defect in, the promissory note of any agreement or
any collateral security for the Obligation (the "Collateral"); Any present or
future law or order of any government (de jure or de facto) or of any agency
thereof purporting to reduce, amend or otherwise affect the indebtedness of the
Borrower or any other obligor or to any other terms of payment; The waiver,
compromise, settlement, release or termination of any or all of the Obligations,
covenants or agreements of the Borrower under the promissory note or any
agreement or of any party named as a Guarantor under this Guaranty: The failure
to give notice to the Guarantor of the occurrence of an event of default under
the promissory note or any other agreement; The loss, release, sale, exchange,
surrender or other change in any Collateral; The repeated extension of the time
for payment of any principal of or interest on the indebtedness or of the time
for performance of any obligations, covenants or agreements under or arising out
of the promissory note or any agreement or the repeated extension or the renewal
of any thereof; The modification or amendment (whether material or otherwise) of
any obligation, covenant or agreement set forth in the promissory note or any
agreement; The taking of, or the omission to take, any of the actions referred
to in the promissory note or any agreement; Any failure, omission or delay on
the part of the Lender to enforce, assert or exercise any right, power or remedy
conferred on the Lender in the promissory note or any agreement; The voluntary
or involuntary liquidation, dissolution, sale or other disposition of all or
substantially all the assets, marshalling of assets and liabilities,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition with creditors or readjustment of, or
other similar proceedings affecting the Guarantor or the Borrower or any of
their assets, or any allegation or contest of the validity of the promissory
note or any agreement; The default or failure of the Guarantor to fully perform
any Obligations set forth in this Guaranty: Any event or action that would, in
the absence of this paragraph, result in the release or discharge of the
Guarantor from the performance or observance of any Obligation, covenant or
agreement contained in this Guaranty; and Any other circumstances which might
otherwise constitute a legal or equitable discharge or defense of a surety or a
guarantor.
5. DIRECT AND UNCONDITIONAL NATURE OF GUARANTY. Guarantor's Obligations
are direct and unconditional and may be enforced without requiring Lender to
exercise, enforce, or exhaust any right or remedy against any Borrower,
Co-guarantor, third party, or any security or Collateral.
6. WAIVER. Guarantor hereby waives notice of the acceptance of this
Guaranty; notice of present and future extensions of credit and other financial
accommodations by Lender to any Borrower; notice of the obtaining or release of
any guaranty, assignment, or other security for any of the indebtedness: notice
of presentment for payment, demand, protest, dishonor, default, and nonpayment
pertaining to the indebtedness and this Guaranty and all other notices and
demands pertaining to the indebtedness and this Guaranty; the benefit of
valuation and appraisement laws; and any and all defenses to payment as
permitted by law.
7. NATURE OF GUARANTY. This Guaranty is a guaranty of payment and not
of collection, and the Guarantor hereby waives the right to require that any
action be brought first against the Borrower or any other Guarantor, or any
security or the Collateral, or to require that resort be made to any security or
the Collateral or to any balance of any deposit account on credit on the books
of the Lender in favor of the Borrower or of any Guarantor.
GUARANTOR ACKNOWLEDGES GUARANTOR HAS READ, UNDERSTANDS. AND AGREES TO THE TERMS
AND CONDITIONS OF THIS AGREEMENT INCLUDING THE TERMS AND CONDITIONS ON THE
REVERSE SIDE. GUARANTOR HAS EXECUTED THIS AGREEMENT WITH THE INTENT TO BE
LEGALLY BOUND NOTWITHSTANDING ANY FAILURE BY ANY OTHER PERSON TO SIGN THIS
AGREEMENT. GUARANTOR ACKNOWLEDGES RECEIPT OF AN EXACT COPY OF THIS AGREEMENT.
DATED: JANUARY 25, 2002
GUARANTOR: XXXXXXX X. XXXXXX GUARANTOR:
________________ __________ ________ _________ __________ ___________
XXXXXXX X. XXXXXX
GUARANTOR: GUARANTOR:
____ _____ _____ _____ _____ ______ _____ _____ _____ ______
8. DEFAULT. Guarantor shall be in default under this Guaranty in the
event that any Borrower or Guarantor.
(a) fails to pay any amount under this Guaranty or any
Indebtedness to Lender when due (whether such amount is due at
maturity by acceleration or otherwise):
(b) fails to perform any obligation or breaches any warranty or
covenant to Lender contained in any loan document or this
Guaranty or any other present or future promissory note or
written agreement;
(c) provides or causes any false or misleading signature or
representation to be provided to Lender;
(d) sells, conveys, or transfers rights in any collateral securing
this Guaranty without the written approval of Lender, or
destroys, loses or damages such collateral in any material
respect, or subjects such collateral to seizure or
confiscation;
(e) has a garnishment, judgment, tax levy, attachment or lien
entered or served against Borrower, or any Guarantor, or any
of their property;
(f) dies, becomes legally incompetent, is dissolved or terminated,
cases to operate Its business, becomes insolvent, makes an
assignment for the benefit of creditors, or becomes the
subject of any bankruptcy, insolvency or debtor rehabilitation
proceeding; or '
(g) causes Lander to deem Itself insecure due to a significant
decline in the value of any real or personal property securing
payment of this Guaranty, or Lender in good faith, believes
the prospect of payment or performance is impaired.
9. RIGHTS OF LENDER ON DEFAULT. If there is a default under this
Guaranty, Lander shall be entitled to exercise one or more of the following
remedies without notice or demand (except as required by law):
(a) to declare Guarantor's obligations under this Guaranty
immediately due and payable in full;
(b) to collect the outstanding obligations under this Guaranty
with or without resorting to judicial process;
(c) to take possession of any Collateral in any manner permitted
by law;
(d) to require Guarantor to deliver and make available to Lender
any Collateral at a place reasonably convenient to Guarantor
and Lender;
(e) to sell, lease or otherwise dispose of any Collateral and
collect any deficiency balance with or without resorting to
judicial process;
(f) to set-off Guarantor's Obligations under this Guaranty against
any amounts due to Guarantor including, but not limited to,
monies, instruments, and deposit accounts maintained with
Lender; and
(g) to exercise all other rights available to Lender under any
other written agreement or applicable law.
Lender's rights are cumulative and may be exercised together, separately, and in
any order. Lender's remedies under this paragraph are in addition to those
available at common law, including, but not limited to the right of set-off.
10. SUBORDINATION. The payment of any present or future indebtedness of
Borrower to Guarantor will be postponed and subordinated to the payment in full
of any present or future indebtedness of Borrower to Lender during the term of
this Agreement. In the event that Guarantor receives any monies, instruments, or
other remittances to be applied against Borrower's obligations to Guarantor.
Guarantor will hold those funds in trust for Lender and immediately endorse or
assign (if necessary) and deliver these monies, instruments and other
remittances to Lender. Guarantor agrees that Lender shall be preferred to
Guarantor in any assignment for the benefit of Borrower's creditors in any
bankruptcy, insolvency, liquidation, or reorganization proceeding commenced by
or against Borrower in any federal or state court.
11. INDEPENDENT INVESTIGATION. Guarantor's execution and delivery to
Lender of this Guaranty is based solely upon Guarantor's independent
investigation of Borrower's financial condition and not upon any written or oral
representation of under in any manner. Guarantor assumes full responsibility for
obtaining any additional information regarding Borrower's financial condition
and Lender shall not be required to furnish Guarantor with any information of
any kind regarding Borrower's financial condition.
12. ACCEPTANCE OF RISKS. Guarantor acknowledges the absolute and
continuing nature of this Guaranty and voluntarily accepts the full range of
risks associated herewith including, but not limited to the risk that
Borrower's financial condition shall deteriorate or, if this Guaranty is
unlimited, the risk that Borrower shall incur additional indebtedness to Lender
in the future.
13. SUBROGATION. The Guarantor hereby irrevocably waives and releases
the Borrower from all "claims" (as defined in Section 101(5) of the Bankruptcy
Code) to which the Guarantor is or would, at any time, be entitled by virtue of
its obligations under this Guaranty, including, without limitation, any right of
subrogation (whether contractual, under Section 509 of the Bankruptcy Code or
otherwise), reimbursement, contribution, exoneration or similar right against
the Borrower.
14. APPLICATION OF PAYMENTS. Lender will be entitled to apply any
payments or other monies received from Borrower, any third party, or any
collateral against Borrower's present and future indebtedness to Lender in any
order.
15. TERMINATION. This Guaranty shall remain in full force and effect
until Lender executes and delivers to Guarantor a written release thereof.
Notwithstanding the foregoing. Guarantor shall be entitled to terminate any
unlimited guaranty of Borrower's future indebtedness to Lander following any
anniversary of this Guaranty by providing Lender with sixty (60) or more days'
written notice of such termination by hand-delivery or certified mail. Notice
shall be deemed given when received by Lender. Such notice of termination shall
not affect or impair any of the agreements and Obligations of the Guarantor
under this Agreement with respect to any indebtedness existing prior to the time
of actual receipt of such notice by Lender, any extensions, modifications,
amendments, replacements or renewals thereof, and any interest on any of the
foregoing.
16. ASSIGNMENT. Guarantor shall not be entitled to assign any of its
rights or Obligations described in this Guaranty without Lander's prior written
consent which may be withheld by Lender in its sole discretion. Lender shall be
entitled to assign some or all of its rights and remedies described in this
Guaranty without notice to or the prior consent of Guarantor in any manner.
Unless the Lender shall otherwise consent in writing, the Lender shall have an
unimpaired right prior and superior to that of any assignee, to enforce this
Guaranty for the benefit of the Lender, as to those Obligations that the Lender
has not assigned.
17. MODIFICATION AND WAIVER. The modification or waiver of any of
Guarantor's Obligations or Lender's right under this Guaranty must be contained
in a writing signed by Lender. No delay on the part of Lender in the exercise of
any right or remedy shall preclude other or further exercise thereof or the
exercise of any other right or remedy. The validity of this Continuing Guaranty
and the Guarantor's Obligations hereunder shall not be terminated or impaired by
reason of (a) any action which Lender may take or fail to take against Borrower
or (b) any wavier of notes, or other documents evidencing Borrower's
indebtedness. Guarantor hereby consents to any accommodation made or to be made
by Lender to Borrower, including but not limited to a release of Borrower from
all or any part of the indebtedness, an extension of the maturity date of the
indebtedness, the release of any Collateral, or any other alteration in the
indebtedness, and hereby waives any and all claims of discharge based upon such
actions by Lender, regardless of whether it increases Guarantor's exposure
hereunder.
18. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon and
inure to the benefit of Guarantor and Lender and their respective successors,
assigns, trustees, receivers, administrators, personal representatives,
legalees, and devisees.
19. NOTICE. Any notice or other communication to be provided under this
Guaranty shall be in writing and sent to the parties at the addresses described
in this Guaranty or such other addresses as the parties may designate in writing
from time to time.
20. SEVERABILITY. If any provision of this Guaranty is invalid, illegal
or unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
21. APPLICABLE LAW. This Guaranty shall be governed by the laws of the
state of Indiana. Unless applicable law provides otherwise, Guarantor consents
to the jurisdiction and venue of any court selected by Lender in its discretion
located in such state in the event of any legal proceeding under this Guaranty.
22. COLLECTION COSTS. To the extent permitted by law, Guarantor agrees
to pay collection costs, expanses, and reasonable attorneys fees and costs,
incurred by Lender in collecting any amount due or enforcing any right or remedy
under this Guaranty whether or not suit is brought, including but not limited
to, expenses, fees, and costs incurred for collection, enforcement, realization
on collateral, construction, interpretation, and appearance in collection,
bankruptcy, insolvency, reorganization, post-judgment, and appellate
proceedings.
23. REPRESENTATIONS OF GUARANTOR. Guarantor acknowledges receipt of
reasonably equivalent value in consideration for the execution of this Guaranty
and represents that, after giving effect to this Guaranty, the fair market
value of Guarantor's assets exceeds Guarantor's total liabilities, including
contingent, subordinate and unliquidated liabilities, that Guarantor has
sufficient cash flow to meet debts as they mature, and that Guarantor does not
have unreasonably small capital. Guarantor represents that all required director
and shareholder consents to enter into this Guaranty have been obtained.
24. MISCELLANEOUS. This Guaranty is executed in connection with a
commercial or agricultural loan. Guarantor and Lender agree that time is of the
essence. Guarantor will provide Lender with a current financial statement upon
request. All references to Guarantor in this Guaranty shall include all entities
or persons signing this Guaranty. If there is more than one Guarantor, their
obligations under this Guaranty shall be joint and several. This Guaranty
represents the complete and integrated understanding between Guarantor and
Lender regarding the terms hereof.
25. WAIVER OF JURY TRIAL LENDER AND GUARANTOR HEREBY WAIVE ANY RIGHT TO
A TRIAL BY JURY IN ANY CIVIL ACTION ARISING OUT OF, OR BASED UPON, THIS
GUARANTY.
26. ADDITIONAL TERMS.
