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EXHIBIT 10.6
EXECUTIVE EMPLOYMENT CONTRACT
THIS AGREEMENT made as of July 1, 1999 by and between PMC Capital,
Inc., a Florida Corporation with its principal places of business in Dallas,
Collin County, Texas, hereinafter referred to as the "CORPORATION", and Xxxx X.
Xxxxxxxxxxx; hereinafter referred to as "EXECUTIVE".
WITNESSETH THAT:
In consideration of the promises herein contained, the parties hereto
mutually agree as follows:
1. Employment: The Corporation hereby employs the Executive as its
Senior Vice President with such powers and duties as may be specified by the
Board of Directors. The Executive hereby accepts employment upon the terms and
conditions as hereinafter set forth.
2. Term: Subject to the provisions for termination as hereinafter
provided, the term of this Agreement shall begin immediately and shall terminate
on (i) the Executive's seventieth birthday (70th) or (ii) July 31, 2002 or such
later date as determined by the Board of Directors(the "Term"). The Term of this
Executive Employment Contract may be extended annually by the Board of
Directors.
3. Compensation: For all services rendered by the Executive under this
contract, the Executive shall be paid at a minimum the annual rate effective as
of July 1, 1998 (the "Minimum Rate"). The Minimum Rate may be increased by the
Board at their discretion. The preceding is payable pursuant to the normal
payroll practices of the Corporation.
The Board of Directors may consider bonus compensation for the
Executive if the performance of PMC Capital, Inc. and the Executive justifies
such bonus compensation.
4. Authorized Expenses: The Executive is authorized to incur reasonable
expenses for the promotion of the business of the Corporation. The Corporation
will reimburse the Executive for all such reasonable expenses upon the
presentation by the Executive, from time to time, of an itemized account of such
expenditures.
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The Executive shall be entitled to such additional and other fringe
benefits as the Board of Directors shall from time to time authorize.
5. Extent of Services: The Executive shall devote a substantial portion
of business time, attention and energies to the business of the Corporation, and
shall not, during the term of this Agreement engage in any other business
activities, whether or not such activities are pursued for gain, profit or other
pecuniary advantage. This provision is not meant to prevent her from A) devoting
reasonable time to civic or philanthropic activities or B) investing her assets
in such form or manner providing that it does not require any substantial
services on the part of the Executive that will interfere with the Executive's
employment pursuant to this Agreement. Executive's employment is considered as
full-time.
6. Working Facilities: The Executive shall be furnished with such
facilities and services suitable to her position and adequate for the
performance of her duties.
7. Duties: The Executive is employed in an executive and supervisory
capacity and shall perform such duties consistent herewith as the Board of
Directors of the Corporation shall from time to time specify. Subject to the
provisions of Section 17 hereof the precise services of the Executive may be
extended or curtailed, from time to time, at the discretion of the Board of
Directors of the Corporation.
8. Confidential and Proprietary Information. The Corporation is engaged
in the business of providing commercial loans, including but not limited to,
U.S. Small Business Administration 7(a) and SBIC loans, to qualified borrowers
(the "Corporate Business").
(a) Executive acknowledges that in order to conduct the Corporate
Business, the Corporation owns and uses certain written and unwritten
confidential and proprietary information, materials, data and know-how about the
Corporate Business that is not generally known in the Corporation's industry and
which may not rise to the level of a trade secret under applicable law. All of
this information has value to and provides competitive advantages to the
Corporation and is owned
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by the Corporation and/or is used in the operation of the Corporate Business.
This information includes, but is not limited to customer relationships,
customer lists and prospective customer lists; information provided to the
Corporation by its customers or clients; marketing plans and strategies; methods
of operations and cost data; internal policies and procedures; contracts;
personnel information; and financial information (including fee and pricing
structures, assets, status of client accounts or credit). The preceding
information and any other information which may be designated as confidential by
the Corporation is collectively, referred to as the "Confidential Information".
Executive further acknowledges that during the course of her employment, and as
a result of her employment, she has or will become privy to the Confidential
Information of the Corporation.
(b) Executive agrees that both during and after termination of her
employment with the Corporation for any reason, Executive will hold all
Confidential Information in trust and confidence for the Corporation's benefit
and will not use or disclose any Confidential Information that Executive
acquires or obtains during the time Executive works as an Executive for the
Corporation, except as specifically authorized by the President of the
Corporation, in writing. This limitation applies whether the Confidential
Information was developed by Executive or whether or not Executive has been
authorized to have access to the Confidential Information. Executive further
agrees to comply with all of the Corporation's requirements, policies and
procedures for protecting Confidential Information and further agrees to comply
with the Corporation's policies concerning confidentiality obligations the
Corporation has agreed to undertake as a result of agreements with its
customers, clients, or others.
(c) The foregoing prescriptions against use, disclosure and copying
do not apply to information or data which: (i) was known by Executive and
reduced to writing prior to the date the Executive began work with the
Corporation; (ii) is available in published print or otherwise known to the
public, unless published or made known as a result of some act or omission on
the Executive's part; or (iii) is lawfully obtained by Executive in writing from
a third party who did not acquire such
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information or data directly or indirectly from Executive, the Corporation or
other party prohibited from transmitting the information to Executive.
9. Non-Solicitation: Customers and Clients. In recognition of the close
personal contact Executive has or will have with the Corporation's Confidential
Information, records and business relationships, and the position of trust in
which the Corporation holds Executive, Executive agrees as follows: while
Executive is employed with the Corporation, and for a period of three (3) years
following the date on which Executive employment with the Corporation is
terminated for any reason, Executive shall not, either on his behalf or as an
officer, director, executive, agent, representative, independent contractor or
in any relationship to any person, partnership, corporation or other entity,
solicit or accept directly or by assisting others, business from any of the
Corporation's existing customers and clients with whom Executive has had
material contact (as hereinafter defined) during the Executive's employment, for
the purpose of providing goods or services to said customers which are directly
competitive with goods or services then being provided by the Corporation to
said customers. For the purposes of this Agreement, "material contact" exists
between Executive and each of the Corporation's existing customers: (i) with
whom Executive actually dealt with; or (ii) whose dealings with the Corporation
were handled, coordinated or supervised by Executive; or (iii) about whom
Executive obtained Confidential Information in the ordinary course of business
through Executive's association with the Corporation. Executive acknowledges
that this provision is intended to protect the Corporate Business and the
Corporation's customer contacts, not to prevent Executive from pursuing a
livelihood in the general area of his previous training, and it should be
interpreted accordingly.
10. Non-Solicitation: Employees, Consultants and Independent
Contractors. In recognition of the close personal contact Executive has or will
have with the Corporation's, Confidential Information, records and business
relationships, and the position of trust in which the Corporation holds
Executive, Executive agrees as follows: while Executive is employed with the
Corporation, and
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for a period of three (3) years following the date on which Executive's
employment with the Corporation is terminated for any reason, Executive shall
not recruit, induce or influence or seek to recruit or employ directly or by
assisting others, any person who is employed by the Corporation or who is
associated with the Corporation as a consultant or independent contractor at the
time of the termination of the Executive's employment and with whom Executive
had material contract (as hereinafter defined) during Executive's employment
with the Corporation, to leave or terminate his or her employment or
relationship with the Corporation. For the purposes of this Agreement, "material
contact" exists between Executive and other employees, consultants and/or
independent contractors of the Corporation: (i) with whom Executive actually
dealt; or (ii) whose employment or dealings with the Corporation or services for
the Corporation were handled, coordinated or supervised by the Executive. This
section is intended to protect the Corporate Business and its significant
investment in the training, development and loyalty of its employees,
consultants and independent contractors, not to prevent Executive from pursuing
a livelihood in the general area of his previous training, and it should be
interpreted accordingly.
11. Non-Compete. As part of the essence of the consideration hereof,
during Executive's employment hereunder for a period three (3) years from and
after the termination of her employment under this Agreement or any renewal term
hereof (the "Termination"), whether such termination is voluntary or
involuntary, Executive agrees and covenants that she will not collectively or
individually engage in or become affiliated with, directly or indirectly, either
for herself or as a member of a joint venture, partnership or corporation, or as
a major stockholder, consultant, officer or director in a corporation, or as an
Executive or agent on behalf of any person, firm, joint venture, partnership or
corporation, any business which offers or performs commercial lending or loan
brokerage services or related services which are the same or substantially
similar to the Corporate Business or other services offered by the Corporation
at any time during the three (3) years immediately prior to such termination,
within any of the metropolitan areas in which Executive has worked in any
capacity on behalf of the Corporation at any time during the three (3) years
immediately preceding the termination.
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12. Vacations: The Executive shall be entitled each year to a vacation
in accordance with the vacation policy of the Corporation.
13. Disability: If the Executive is unable to perform his services by
reason of illness or total incapacity, based on standards similar to those
utilized by the U.S. Social Security Administration he shall receive his full
salary for one (1) year of said total incapacity through coordination of
benefits with any existing disability insurance program provided by the
Corporation (a reduction in salary by that amount paid by any company provided
insurance). Should said Executive be totally incapacitated beyond a one-year
period, so that he is not able to devote full time to his employment with said
Corporation, then this Agreement shall terminate.
14. Death During Employment: If the Executive dies during the term of
employment and has not attained the age of seventy years old, the Corporation
and/or any third party insurance provided by the Corporation, through a
coordination of benefits, shall pay the estate of the Executive a death benefit
equal to two times the Executive's annual salary. In the event the Executive
receives death benefits payable under any group life insurance policy issued to
the Corporation, the Corporation's liability under this clause will be reduced
by the amount of the death benefit paid under such policy. The Corporation shall
pay any remaining death benefits to the estate of the Executive over the course
of twelve (12) months in the same manner and under the same terms as the
Executive would have been paid if the had still been working for the
Corporation. No later than one (1) month from the date of death, the estate of
the Executive will also be paid any accumulated vacation pay. Such payments
pursuant to this paragraph shall constitute the full compensation of said
Executive and he and his estate shall have no further claim for compensation by
reason of his employment by the Corporation.
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15. Assignment: The acts and obligations of the Corporation under this
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Corporation.
16. Invalidity: If any paragraph or part of this Agreement is invalid,
it shall not affect the remainder of this Agreement but the remainder shall be
binding and effective against all parties.
17. Additional Compensation: If during the Term, this Agreement is
terminated by the Corporation (other than pursuant to the provisions of Section
18 hereof) or by the Executive due to "Constructive Discharge" then the
Executive shall receive termination pay in an amount equal to 2.99 times the
Minimum Rate. For purposes of this Agreement, "Constructive Discharge" shall
mean:
o Any reduction in salary below the Minimum Rate;
o A material change diminishing the Executive's job function,
authority, duties or responsibilities, or a similar change
deteriorating Executive's working conditions that would not be in
accordance with the spirit of this Agreement;
o A required relocation of Executive of more than 35 miles from
Executive's current job location; or requires Executive to travel
away from Executive's office in the course of discharging
Executive's responsibilities in excess of that typically required
of executives in similar positions.
o Any breach of any of the terms of this Agreement by the
Corporation which is not cured within 14 days following written
notice thereof by Executive to the Corporation.
The amount payable by the Corporation pursuant to this Section 17 shall be made
in one lump sum cash payment payable to the Executive no later than 30 days
following termination of this Agreement.
18. Termination: The Corporation cannot terminate this agreement except
for: 1) the intentional, unapproved misuse of corporate funds, 2a) professional
incompetence (i.e. the
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intentional refusal to perform or the inability to perform the duties associated
with Executive's position with the Corporation in a competent manner, which is
not cured within 15 days following written notice to Executive) or 2b) willful
neglect of duties or responsibilities in either case not otherwise related to or
triggered by the occurrence of any event or events described in or prescribed by
Section 17 hereof.
19. Remedies for Breach by Executive. The Corporation provides the
livelihood and financial stability for a number of employees and investors that
will continue after the hiring and employment of Executive. Both parties agree
that compliance with the covenants and provisions contained herein are necessary
to protect the business and goodwill of the Corporation and that a breach will
result in irreparable and continuing damage to the Corporation. Both parties
agree that it is impossible to measure or compensate in money alone the damages
that would accrue in the event of Executive's failure to perform his obligations
hereunder. Therefore, if Executive breaches any covenant or provision hereof,
the Corporation shall have, at its option (without limiting any other right or
remedy which may be available either simultaneously or alternatively): (i) the
right and remedy to have such provisions enforced by specific enforcement,
injunctive relief or other equitable remedy by any court of competent
jurisdiction, and (ii) the right and remedy to require Executive to account for
and pay over to the Corporation all compensation, profits, monies, accruals,
increments or other benefits (collectively the "benefits"), derived or received
by Executive ( or her successors and assigns) as a result of any transactions
constituting a breach of any of the provisions hereof, and (iii) any other
remedy provided by law.
20. Indemnification: The Corporation hereby agrees to indemnify and
hold the Executive harmless from any loss for any corporate undertaking, as
contemplated in Paragraph 7 herein, whereby a claim, allegation or cause of
action shall be made against the Executive in the performance of her contractual
duties except for willful illegal misconduct. Said indemnification shall include
but not be limited to reasonable cost incurred in defending the Executive in her
faithful performance of contractual duties.
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21. Entire Agreement: This contract may not be changed except in
writing and embodies the whole Agreement between the parties hereto and there
are no inducements, promises, terms, conditions or obligations made or entered
into by the Corporation or the Executive other than contained herein. This
Executive Employment Contract supercedes and replaces that certain Executive
Employment Contract dated July 1, 1998 between the Corporation and the
Executive.
IN WITNESS WHEREOF, the parties here hereunto signed and sealed this Agreement
the date first above written.
Signed, Sealed and Delivered "Corporation"
the presence of: PMC Capital, Inc.
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By: Xxxxx X. Xxxxxxxx
President
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"EXECUTIVE"
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By: Xxxx X. Xxxxxxxxxxx
Senior Vice President
(CORPORATE SEAL)
