EXHIBIT 10(d)
EMPLOYMENT AGREEMENT
AGREEMENT made effective as of the 1st day of January, 2001, by and between
Legal Club of America Corporation with its principal offices at 0000 X. Xxxxxxxx
Xxxx, Xxxx. X, Xxxxx 000 Xxxxxxx, Xxxxxxx (the "Company") and Xxxxx Xxxxxx, an
individual residing at 0000 XX 00xx Xxx, Xxxxxxxx, Xx. 00000 (the "Executive").
PRELIMINARY STATEMENT
The Company has agreed to employ the Executive and the Executive has agreed to
accept such employment, all on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and
other good and valuable considerations, the receipt and adequacy of which are
hereby conclusively acknowledged, the parties, intending to be legally bound,
agree as follows:
1. Term. The Company hereby employs the Executive as Executive VP of the Company
(as used herein, reference to the Company includes its subsidiaries), and the
Executive agrees to serve the Company as such, upon the terms and conditions
hereof. The term of employment hereunder (the "Term") shall commence on the date
hereof and continue until either party to the other gives 12 months' notice of
termination, unless the Term is otherwise terminated in accordance with the
provisions hereof.
2. Duties. (a) Executive shall serve as the Company's Executive VP, and shall be
responsible for the Company's overall sales management, direction and policies,
subject only to the directions and supervision of the Company's, CEO, President
and Board of Directors. The Executive shall also discharge such duties and
authority as are generally incident to such position, or in such other senior
management position as the Company shall determine, provided that such other
position shall be comparable in authority and responsibility to the position
specified above. The Executive will hold such senior offices and/or such
directorships in the Company and/or any subsidiaries or affiliates of the
Company to which, from time to time, he may be elected or appointed. The
Executive shall serve as a Director of the Company during the entire Term of
this Agreement.
(b) The Executive agrees that he will devote substantially all of his time and
attention to the affairs of the Company and use his best efforts to promote the
business and interests of the Company and that he will not engage, directly or
indirectly, in any other business or occupation during the term of employment.
It is understood, however, that the foregoing will not prohibit the Executive
from engaging in personal investment activities for himself and his family which
do not interfere with the performance of his duties hereunder.
3. Compensation. The Company will pay the Executive for all services to be
rendered by the Executive hereunder (including, without limitation, all services
to be rendered by him as an officer and/or director of the Company and its
subsidiaries and affiliates):
(c) A salary ("Base Annual Pay") of $150,000, payable in installments in
accordance with customary payroll practices for senior executives of the
Company.
(d) Bonus compensation for each fiscal year of the Company, based on Executive's
performance and the overall performance of the Company, either on an "ad hoc"
basis or pursuant to a bonus plan or arrangement as may be established at the
Company's discretion for senior executives of the Company.
Nothing contained herein shall prohibit the Board of Directors of the Company,
in its sole discretion, from increasing the compensation payable to the
Executive pursuant to this Agreement. The Base Annual Pay shall be reviewed for
potential increase on an annual basis, on each anniversary of the date of this
Agreement, and the minimum annual increase in Base Annual Pay shall be 10% over
the Base Annual Pay then in effect.
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4. Expenses. The Executive shall be entitled to reimbursement by the Company, in
accordance with the Company's policies then applicable to senior executives at
the Executive's level, against appropriate vouchers or other receipts for
authorized travel, entertainment and other business expenses reasonably incurred
by him in the performance of his duties hereunder. Without limiting the
generality of the foregoing, the Company will pay or reimburse the Executive for
the use of a pager and for his business use of a cellular telephone.
5. Executive Benefits. The Executive shall be entitled to participate in, and
receive benefits under, any pension, profit sharing, insurance, hospitalization,
medical, disability, stock purchase, stock option, stock ownership, vacation or
other employee benefit plan, program or policy of the Company which may be in
effect at any time during the course of his employment by the Company and which
shall be generally available to senior executives of the Company occupying
positions of comparable status or responsibility, subject to the terms of such
plans, programs or policies. Notwithstanding the foregoing, the Company may, in
its discretion, at any time and from time to time, change or revoke any of its
employee benefits plans, programs or policies and Executive shall not be deemed,
by virtue of this Agreement, to have any vested interest in any such plans,
programs or policies. The Executive shall also be entitled to four (4) weeks'
paid vacation per year. Without limiting the generality of the foregoing, the
Executive shall be entitled to receive Group Health and Dental Insurance
coverages for himself and his family at no charge to Executive, and at the
Executive's option, the Company will pay the amount of the Company's premium for
these coverages to the Executive, in lieu of providing such coverage, and the
Executive will be entitled to long term disability insurance coverage at the
same time as such coverage is made available to the Company's Chief Executive
Officer
6. Withholding. All payments required to be made by the Company hereunder to the
Executive shall be subject to the withholding of such amounts relating to taxes
and other governmental assessments as the Company may reasonably determine it
should withhold pursuant to any applicable law, rule or regulation.
7. Death; Permanent Disability. Upon the death of the Executive during the term
of this Agreement, this Agreement shall terminate. If during the term of this
Agreement the Executive fails because of illness or other incapacity to perform
the services required to be performed by him hereunder for any consecutive
period of more than 90 days, or for shorter periods aggregating more than 120
days in any consecutive twelve-month period (any such illness or incapacity
being hereinafter referred to as "permanent disability"), then the Company, in
its discretion, may at any time thereafter terminate this Agreement upon not
less than 10 days' written notice thereof to the Executive, and this Agreement
shall terminate and come to an end upon the date set forth in said notice as if
said date were the termination date of this Agreement; provided, however, that
no such termination shall be effective if prior to the date when such notice is
given, the Executive's illness or incapacity shall have terminated and he shall
be physically and mentally able to perform the services required hereunder and
shall have taken up and be performing such duties.
If the Executive's employment shall be terminated by reason of his death or
permanent disability, the Executive or his estate, as the case may be, shall be
entitled to receive (i) any earned and unpaid salary accrued through the date of
termination, (ii) a pro rata portion of any annual bonus which the Executive
would otherwise have been entitled to receive pursuant to any bonus plan or
arrangement for senior executives of the Company (such pro rata portion to be
payable at the time such annual bonus would otherwise have been payable to the
Executive) , (iii) six months' continuation of Base Annual Pay and benefits as a
death benefit or disability termination benefit and (iv) subject to the terms
thereof, any benefits which may be due to the Executive on the date of
termination under the provisions of any employee benefit plan, program or
policy.
8. Termination
(d) For Cause. The Company may at any time during the term of this Agreement, by
written notice, terminate the employment of the Executive for cause, the cause
to be specified in the notice. For purposes of this Agreement, "cause" shall
mean (i) the Executive's material breach or default under this Agreement that
continues uncured for a period of 30 days after the Executive receives notice
thereof from the Company; or (ii) the Executive's conviction of a felony. A
determination of whether cause for termination exists can only be made at a
meeting of the Board of which the Executive receives prior notice and at which
the Executive receives an opportunity to address the Board on the issue.
Termination for cause shall be effective upon the giving of such notice and the
Executive shall be entitled to receive (i) any earned and unpaid salary accrued
through the date of termination and (ii) subject to the terms thereof, any
benefits which may be due to the Executive on such date under the provisions of
any employee benefit plan, program or policy. The Executive hereby disclaims any
right to receive a pro rata portion of any annual bonus with respect to the
fiscal year in which such termination occurs.
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(e) Without Cause. The Company may terminate the Term at any time, upon at least
12 months' notice to Executive, without Cause, provided that in such event that
the Company either pay the Executive all the compensation and benefits to which
he is entitled during the succeeding 12 months (including without limitation
annual increases in Base Annual Pay) or shall pay the Executive in a lump sum
the amounts of compensation that it would be required to pay Executive over such
12 months, and terminate the Term effective upon such payments, in which event
the Executive shall also be entitled to receive (i) any additional earned and
unpaid compensation accrued hereunder through the date of termination, (ii)
subject to the terms thereof, any benefits which may be due to the Executive on
such date under the provisions of any employee benefit plan, program or policy;
(iii) continuation of health and dental coverages for 12 months following such
termination, and (iv) a pro rata portion of any annual bonus with respect to the
fiscal year in which such termination occurs. In the event of a Change in
Control, as defined below, the Executive may, within 180 days of the effective
date of such Change in Control, terminate the term of this Agreement, with the
effects as stated in Subsection c, below.
(f) Parachute payment If the Executive's employment is terminated due to (i) the
occurrence of a Change of Control of the Company; or (ii) the termination by the
Executive of his employment with the Company for "Good Reason" (as defined
below) as a result of the Company's material breach hereof, then in any such
event (an "Event of Termination"), then (A) the Company shall pay to the
Executive in a lump sum payment (a "Parachute Payment") on the effective date of
the termination of the Executive's Employment (the "Termination Date") an amount
equal to the sum of three times the Executive's annualized includible
compensation for the base period, as such may be defined in ss.280G of the
Internal Revenue code of 1986, as amended (or the regulations promulgated
thereunder) (the "Code") minus one dollar (it being the intent of this provision
that the Executive receive the maximum compensation payable under the Code in
such circumstances that is deductible to the Company and which doe not trigger
the excise tax contemplated by the Code for excess parachute payments); and (B)
the Company shall maintain in full force and effect, at the Company's sole
expense (pursuant to waiver of COBRA premiums or otherwise) and for the
Executive's continued benefit until one year after the Termination Date all life
insurance, medical, health and accident, and disability plans and similar
arrangements in which the Executive was entitled to participate immediately
prior to the Event of Termination. In the event that the Executive's
participation in any such plan or program is barred by the plans or programs,
the Company shall arrange to provide the Executive with benefits, at the
Company's sole expense, substantially similar to those to which the executive is
entitled under such plans and programs. As used herein, "Good Reason" for the
Executive to terminate the Term of employment shall mean any one or more of the
following: (a) the occurrence of a Change in Control, (b) the Company's breach
or default under this Agreement, (c) the Company's requiring the Executive to
relocate without his prior consent out of a 50 mile radius from the Company's
present executive offices, or (d) the Company requiring the Executive to change
in any material adverse way, his job description, reporting, or duties. The
Executive shall not be required to mitigate the amount of any payment provided
for in this Agreement by seeking other employment or otherwise, nor shall the
amount of any payment provided for in this Section be reduced by any
compensation earned by the Executive as a result of employment by another
employer after the Termination Date or otherwise; however, the Executive shall
have the right (but not the obligation) to voluntarily reduce the consideration
payable to him upon a Change in Control, in any manner the Executive may elect
by written notice to the Company.
9. Insurance. The Executive agrees that the Company may procure insurance on the
life of the Executive, in such amounts as the Company may in its discretion
determine, and with the Company named as the beneficiary under the policy or
policies.
10. Second Highest Level Notwithstanding any other provisions herein, any
benefits made available to Executive shall be at the highest level made
available to the Company's other executives, second only to the Company's CEO.
11. Non-Competition; Solicitation.
(a) The Executive acknowledges and recognizes that the highly competitive nature
of the Company's business and that the goodwill and patronage of the Company's
customers and network of attorneys constitute a substantial asset of the
Company, having been acquired through considerable time, effort and money.
Accordingly, the Executive agrees that during his employment with the Company
and for a period of 1 year after Executive leaves the Company's employ for any
reason, he shall not, without the written consent of the Company, directly or
indirectly, either individually or as an employee, agent, partner, shareholder,
consultant, option holder, lender of money, guarantor or in any other capacity,
participate in, engage in or have a financial interest or management position or
other interest in any business, firm, company or other entity if it competes
with any business operation conducted by the Company or its subsidiaries or
affiliates or any successor or assign thereof, nor will he solicit any other
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person to engage in any of the foregoing activities, in each case within the
United States of America, its possessions and territories. The Executive
acknowledges that the Company's business includes a nationwide network of
attorneys and a national customer base, and therefore agrees that such the scope
of this restriction is appropriate and necessary to protect the Company's
legitimate business interests. Participation in the management of any business
operation other than in connection with the management of a business operation
which is in direct competition with the Company or its subsidiaries or
affiliates or any successor or assign thereof shall not be deemed to be a breach
of this Section 10(a). The foregoing provisions of this Section 10(a) shall not
prohibit the ownership by the Executive (as the result of open market purchase)
of 5% or less of any class of capital stock of a Company which is regularly
traded on a national securities exchange or over-the-counter on the NASDAQ
System.
(b) The Executive will not at any time during his employment with the Company
and for a period of 1 year after Executive leaves the Company's employ for any
reason, solicit or assist or encourage the solicitation of) any employee of the
Company or any of its subsidiaries or affiliates to work for Executive or for
any business, firm, Company or other entity in which the Executive, directly or
indirectly, in any capacity described in Section 10(a) hereof, participates or
engages (or expects to participate or engage) or has (or expects to have) a
financial interest or management position.
(c) The Executive shall not at any time during his employment and for a period
of 1 years after any termination thereof, directly or indirectly compete with
the Company by soliciting, inducing or influencing any of the customers, agents
or attorneys of the Company or its attorney network to discontinue or reduce the
extent of such relationship with the Company, or commence or expand any such
relationship with any competitor of the Company.
(d) If any of the covenants contained in this Section 10 or any part thereof, is
held by a court of competent jurisdiction to be unenforceable because of the
duration of such provision, the activity limited by or the subject of such
provision and/or the area covered thereby, then the court making such
determination shall construe such restriction so as to thereafter be limited or
reduced to be enforceable to the greatest extent permissible by applicable law.
12. Confidential Information, Etc. The Executive agrees that he shall not,
during or after the termination of this Agreement, divulge, furnish or make
accessible to any person, firm, Company or other business entity, any
information, trade secrets, technical data or know-how relating to the business,
business practices, methods, products, processes, equipment, clients' prices,
lists of customers or marketing agents of the Company, terms of marketing
arrangements or the attorney network list, or other confidential or secret
aspect of the business of the Company and/or any subsidiary or affiliate, except
as may be required in good faith in the course of his employment with the
Company or by law, without the prior written consent of the Company, unless such
information shall become public knowledge or becomes available from independent
sources, in each case other than by reason of Executive's breach of the
provisions hereof.
13. Acceptance by Parties. Each of the Executive and the Company accepts all of
the terms and provisions of this Agreement and agrees to perform all of the
covenants on his or its part to be performed hereunder.
14. Equitable Remedies. The Executive acknowledges that he has been employed for
his unique talents and that his leaving the employ of the Company would
seriously hamper the business of the Company and that the Company will suffer
irreparable damage if any provisions of Sections 10 or 11 hereof are not
performed strictly in accordance with their terms or are otherwise breached. The
Executive hereby expressly agrees that the Company shall be entitled as a matter
of right to injunctive or other equitable relief, in addition to all other
remedies permitted by law, to prevent a breach or violation by the Executive and
to secure enforcement of the provisions of Sections 10 or 11 hereof. Resort to
such equitable relief, however, shall not constitute a waiver or any other
rights or remedies which the Company may have.
15. Entire Agreement. This Agreement memorializes, encompasses and supersedes
the parties understandings and agreement relative to the Executive's acceptance
of employment hereunder, and constitutes the entire agreement between the
parties hereto and there are no other terms other than those contained herein.
No variation or modification hereof shall be deemed valid unless in writing and
signed by the parties hereto and no discharge of the terms hereof shall be
deemed valid unless by full performance of the parties hereto or by a writing
signed by the parties hereto. No waiver by the Company or any breach by the
Executive of any provision or condition of this Agreement by him to be performed
shall be deemed a waiver of a breach of a similar or dissimilar provision or
condition at the same time or any prior or subsequent time.
16. Severability. In case any provision in this Agreement shall be declared
invalid, illegal or unenforceable by any court of competent jurisdiction, the
validity and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
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17. Notices. All notices, requests, demands and other communications provided
for by this Agreement shall be in writing and shall be deemed to have been given
at the time when mailed in the United States enclosed in a registered or
certified post-paid envelope, return receipt requested, and addressed to the
addresses of the respective parties stated below or to such changed addresses as
such parties may fix by notice:
To the Company:
Legal Club of America Corporation
0000 X. Xxxxxxxx Xxxxxxx, Xxxxx 000 Xxxx. X
Xxxxxxx, XX 00000
To the Executive:
0000 XX 00xx Xxx, Xxxxxxxx, Xx. 00000
provided, however, that any notice of change of address shall be effective only
upon receipt.
18. Successors and Assigns. This Agreement is personal in its nature and neither
of the parties hereto shall, without the consent of the other, assign or
transfer this Agreement or any rights or obligations hereunder (except for an
assignment or transfer by the Company to a successor as contemplated by the
following proviso); provided, however, that the provisions hereof (including but
not limited to the non-compete and confidentiality provisions hereof) shall
inure to the benefit of, and be binding upon, any successor of the Company,
whether by merger, consolidation, transfer of all or substantially all of the
assets of the Company, or otherwise, and upon the Executive, his heirs,
executors, administrators and legal representatives.
19. Governing Law. This Agreement and its validity, construction and performance
shall be governed in all respects by the internal laws of the State of Florida,
without giving effect to any principles of conflict of laws.
20. Headings. The headings in this Agreement are for convenience of reference
only and shall not control or affect the meaning or construction of this
Agreement.
21. Arbitration. Except as otherwise provided in this Agreement, any dispute
arising out of or in connection with this Agreement or the employment of the
Executive by the Company shall be resolved by binding arbitration in Miami,
Florida, in accordance with the American Arbitration Association's rules and
procedures then in effect and applicable to employment disputes. In any such
arbitration proceedings, the arbitrators shall have the right to order such
document production, exchange of exhibits, interviews of witnesses and other
discovery matters as they determine to be appropriate. The fees and expenses of
the arbitration, including but not limited to legal fees and arbitrator's fees,
shall be borne as the arbitrators may determine to be appropriate. A judgment on
the arbitration award may be entered in any court of competent subject matter
jurisdiction in Miami-Dade County. In the event that a party hereto seeks an
injunctive or equitable remedy, then a proceeding therefor may be commenced and
maintained in such a Court in Miami-Dade County. The parties consent and waive
all objection to such jurisdiction.
22.
IN WITNESS WHEREOF, the parties hereto have hereunder set their hands and seals
the day and year first above written.
LEGAL CLUB OF AMERICA CORPORATION
By:
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(Title)
Executive
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Xxxxx Xxxx
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