Exhibit 10.10
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated December 16, 1996 by and between
First Priority Group, Inc., a New York corporation with an address at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "Company"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an
individual residing at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ("Employee").
W I T N E S S E T H
WHEREAS, the Company desires that Employee be employed by it and render
services to it, and Employee is willing to be so employed and to render such
services to the Company, all on the terms and subject to the conditions
contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt
sufficiency of which is hereby acknowledged, the parties
agree as follows:
1. Employment
Subject to and upon the terms and conditions contained in this Agreement, the
Company hereby employs Employee, for the period set forth in Paragraph 2
(subject to the terms and conditions of this Agreement), to render the services
to the Company, its affiliates and/or subsidiaries described in Paragraph 3.
2. Term
Employee's term of employment under this Agreement shall commence on January
20, 1997 (the "Commencement Date") and shall continue for a period of
twenty-four (24) months thereafter, terminating on December 31, 1998 (the
"Expiration Date"), unless earlier terminated under the terms and conditions
herein (the "Employment Term").
3. Duties
(a) Employee's responsibilities shall be to develop and manage the
insurance services division of the Company, FPG Claims Services Division (the
"Division"), with full responsibility for the financial performance of the
Division, and to perform such other duties and services involving sales,
marketing and program development as shall from time to time be designated by
the Board of Directors or the Co-Chief Executive Officers ("CCEO") of the
Company, or such other executives or employees of the Company as may be
designated by the Board of Directors or the CCEO, as the case may be. Employee
shall be based in Nassau or Suffolk counties during the Employment Term and
shall have the title of President, FPG Claims Services Division.
(b) Employee agrees to abide by all By-Laws and policies of the Company
promulgated from time to time by the Company.
4. Exclusive-Services and Best Efforts
Employee shall devote his entire working time, attention, best efforts and
ability exclusively to the service of the Company, its affiliates and
subsidiaries during the term of this Agreement.
5. Compensation
(a) Base Salary. Commencing on January 20, 1997, the Employee shall
receive an annual salary, payable pursuant to the Company's normal payroll
procedures in place from time to time, during the Employment Term, in the amount
of One Hundred and Fifty Thousand Dollars ($150,000), subject to all required
federal, state and local payroll deductions.
(b) Incentive Compensation. The Employee shall receive Incentive
Compensation equal to the amounts listed below payable on a monthly basis after
the Division's Profit and Loss Statement is calculated monthly:
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Total Net Income of Division Bonus Percentage
during Term of Agreement of Excess Net Income Bonus Dollars
---------------------------- -------------------- ------------------
$0 up to $249,999 25% $0 - $62,500
$250,000 up to $499,999 20% $50,000 - $100,000
$500,000 up to $749,999 15% $75,000 - $112,500
$750,000 and thereafter 10% $75,000 - open
(c) Stock Options. The Employee shall be granted an Incentive Stock
Option (the "Stock Option") under the Company's 1995 Incentive Stock Plan (the
"Plan") providing the Employee with the right to purchase 500,000 shares of the
Company's common stock at Two Dollars ($2) per share. The Company will provide
the Employee with a stock option contract for his signature which will set out
the terms of the option (the "Stock Option Contract"). This Stock Option shall
be subject to the terms of the Plan. Such Stock Option shall be exercisable as
follows:
(i) Definitions for use exclusively in this Paragraph 5:
(A) "Division Profit".The pre-tax net profit of the Division at the
end of each fiscal year ended during the Employment Term.
(B) "Base Profit". The highest Division Profit in the preceding
completed fiscal years attained by the Division during the Employment Term. The
Base Profit for the first fiscal year ended during Employment Term shall be Zero
Dollars ($0).
(C) "Option Profit". The difference resulting in subtracting the Base
Profit from the Division Profit from the most recently completed fiscal year.
(ii) The Employee shall be permitted to exercise Stock Options, for the
remaining term of the Stock Option Contract, with the right to purchase the
Company's common stock in the amounts as calculated using the following formula:
(A) The Employee shall be able to exercise the Stock Options equal to
1,000 shares for every $10,000 of Option Profit, subject to the terms of the
Stock Option Contract.
(iii) Notwithstanding the above, the Employee shall be granted an
additional Stock Option under the Plan with the right to purchase up to 50,000
shares of the Company's common stock at Two Dollars ($2) per share. The Company
will provide the Employee a Stock Option Contract for his signature which will
set out the terms of the option and the Stock Option shall be exercisable in
increments of 16,667 shares, 16,667 shares and 16,666 shares upon the first,
second and third anniversary date of the Commencement Date, respectively. This
Stock Option shall be subject to the terms of the Plan.
6. Business Expenses
Employee shall be reimbursed for only those business expenses incurred by him
(a) which are reasonable and necessary for Employee to perform his duties under
this Agreement in accordance with policies established from time to time by the
Company, and (b) for which Employee has submitted vouchers and/or receipts. The
Employee shall be issued a corporate credit card that he shall use solely for
business expenses which are reasonable and necessary for the Employee to perform
his duties under this Agreement in accordance with policies established from
time to time by the Company
7. Employee Benefits
During the Employment Term, Employee shall participate, to the extent he is
eligible under the terms and conditions thereof, in any health, life, disability
insurance, or 401(k) plan, or other employee benefit plans maintained by
Employer (but nothing herein shall obligate the Company to establish or maintain
any such benefit plan). Employee will not be covered under the Company's health
insurance until the Employee has been employed by the Company for more than
ninety (90) days. The Employee shall be reimbursed for any payments he must make
to continue his health insurance under the COBRA benefits offered by his former
employer, until the Employee is covered under the Company's health insurance
plan.
The Employee shall be reimbursed up to $500 per month for a car allowance upon
the Employee submitting supporting documentation.
8. Vacation and Sick Leave
Employee shall be entitled to three (3) weeks of vacation per annum during the
Employment Term, to be taken at such times as may be mutually agreed upon by the
Company and Employee. The Employee shall be entitled to one (1) week of sick
leave per annum during the Employment Term.
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9. Death and Disability
(a) The Employment Term shall terminate on the date of Employee's death,
in which event Employee's salary payable pursuant to Paragraph 5 through the
date of Employee's death shall be paid to his estate. Employee's estate will not
be entitled to any other compensation upon termination of this Agreement
pursuant to this Paragraph 9(a).
(b) If during the Employment Term, Employee, because of physical or
mental illness or incapacity, shall become substantially unable to perform the
duties and services required of him under this Agreement for a period of
forty-five (45) consecutive days or ninety (90) days in the aggregate, the
Company may, upon at least ten (10) days' prior written notice given at any time
after the expiration of such 45 or 90-day period, as the case may be, to
Employee of its intention to do so, terminate this Agreement as of such date as
may be set forth in the notice. In case of such termination, Employee shall be
entitled to receive his salary payable pursuant to Paragraph 5 through the date
of termination. Employee will not be entitled to any other compensation upon
termination of this Agreement pursuant to this Paragraph 9(b).
10. Termination
(a) The Company may terminate the employment of Employee For Cause (as
hereinafter defined). Upon such termination, the Company shall be released from
any and all further obligations under this Agreement, except that the Company
shall be obligated to pay Employee the unpaid prorated salary pursuant to
Paragraph 5 earned or accrued up through the day on which Employee is
terminated.
(b) As used herein, the term "For Cause" shall mean:
(i) any breach of this Agreement by Employee that, in the case of a
breach that may be cured or remedied, is not cured or remedied to the reasonable
satisfaction of the Company within 30 days after notice is given by the Company
to Employee, setting forth in reasonable detail the nature of such breach;
(ii) Employee's failure to perform his duties and services hereunder to
the satisfaction of the Board of Directors or CCEO of the Company that, in the
case of any such failure that may be cured or remedied, is not cured or remedied
to the reasonable satisfaction of the Company within 30 days after notice is
given by the Company to Employee, setting forth in reasonable detail the nature
of such failure;
(iii) any act, or failure to act, by Employee in bad faith and to the
detriment of the Company; or (iv) commission by Employee of an act involving
moral turpitude, dishonesty, unethical business conduct, or any other conduct
which significantly impairs the reputation of the Company, its subsidiaries or
affiliates.
(v) the conviction of the Employee of a felony, including the plea of
nolo contendere
(c) The Company may terminate this Agreement, upon thirty (30) days
written notice should the Division not attain, for three (3) consecutive months,
at least the pre-tax net income projections as set forth in the "Claims Services
Division Forecast & Projections Summary" for the first twelve (12) months of
this Agreement and at least fifty percent (50%) of the pre-tax net income
projections thereafter, as attached to this Agreement as Exhibit 1 (the
"Forecast") and has not attained at least the pre-tax net income projections as
set forth in the Forecast for the aggregate period commencing in January 1997
through the date of such termination notice.
11. Disclosure of Information and Restrictive Covenant
(a) Employee acknowledges that, by his employment, he has been and will
be in a confidential relationship with the Company and will have access to
confidential information and trade secrets of the Company, its subsidiaries and
affiliates, including, but not limited to, confidential information or trade
secrets belonging or relating to the Company, its subsidiaries, affiliates,
customers and/or clients or proprietary processes or procedures of the Company,
its subsidiaries, affiliates, customers and/or clients. Proprietary processes
and procedures shall include, but shall not be limited to, all information which
is known only to employees of the Company, its respective subsidiaries and
affiliates or others in a confidential relationship with the Company or its
respective subsidiaries and affiliates which relates to business matters.
Confidential information and trade secrets include, but are not limited to,
customer and client lists, price lists, marketing and sales strategies and
procedures, operational and equipment techniques, business plans and systems,
quality control procedures and systems, special projects and technological
research, including projects, research and reports for any entity or client or
any project, research, report or the like concerning sales or manufacturing or
new technology, employee compensation plans and any other
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information relating thereto, and any other records, files, drawings,
inventions, discoveries, applications or processes which are not in the public
domain (all the foregoing shall be referred to herein as the "Confidential
Information"). Employee agrees that in consideration of the execution of this
Agreement by the Company, he will not use, or disclose to any third party, any
of the Confidential Information, other than as required to perform his services
hereunder or as directed or authorized by the Company's Board of Directors or
President.
(b)
(i) Employee will not, at any time prior to the Expiration Date, or if
the Employee's employment shall terminate prior to the Expiration Date, then for
a period of one (1) year after the Employee ceases to be employed by the
Company, engage in or participate in any business activity, including, but not
limited to, acting as a director, officer, employee, agent, independent
contractor, partner, consultant, licensor or licensee, franchiser or franchisee,
proprietor, syndicate member, or shareholder that operates a program similar to
the program of the Division, conducted by the Division during the term of this
Agreement.
(ii) Any time during his employment by the Company or after the
Employee ceases to be employed by the Company, divulge to any persons, firms or
corporations, other than the Company (hereinafter referred to collectively as
"third parties"), or use or allow or cause or authorize any third parties to
use, any such Confidential Information; and
(iii) At any time during his employment by the Company and for a period
of one (1) year after the Employee ceases to be employed by the Company, solicit
or cause or authorize directly or indirectly to be solicited, for or on behalf
of the Employee or third parties, any business from persons, firms, corporations
or other entities who were at any time within one (1) year prior to the
cessation of his employment hereunder, customers of the Company; and
(iv) At any time during his employment by the Company and for a period
of one (1) year after the Employee ceases to be employed by the Company, accept
or cause or authorize directly or indirectly to be accepted, for or on behalf of
the Employee or third parties, any business from any such customers of this
Company; and
(v) At any time during his employment by the Company and for a period
of one (1) year after the Employee ceases to be employed by the Company, solicit
or cause or authorize directly or indirectly to be solicited for employment, for
or on behalf of the Employee or third parties, any persons who were at any time
within one year prior to the cessation of his employment hereunder, employees of
the Company; and
(vi) At any time during his employment by the Company and for a period
of one year after the Employee ceases to be employed by the Company, employ or
cause or authorize directly or indirectly to be employed, for or on behalf of
the Employee or third parties, any such employees of the Company; and
(vii) At any time during his employment by the Company and for a period
of one (1) year after the Employee ceases to be employed by the Company, compete
with the Company in any fashion or work for, advise, be a consultant to or an
officer, director, agent or employee of or otherwise associate with any person,
firm, corporation or other entity which is engaged in or plans to engage in a
business or activity which competes with any business or activity engaged in by
the Company, or which is under development or in a planning stage by the
Company.
(viii) Notwithstanding the above, should this Agreement expire on the
Expiration Date and the Employee's employment shall have terminated on that
Expiration Date, or should the Employee be terminated by the Company for reasons
other than For Cause, then the restrictions upon the Employee's activities as
set forth in Subparagraphs 11(b)(i), 11(b)(iii), 11(b)(iv) and 11(b)(vii) shall
not be operative for the one (1) year period following the Employee's cessation
of employment by the Company, so long as the Employee and/or any organization
with which he becomes associated does not engage in any business or activity
which competes or interferes with any business or activity engaged in by the
Company, or which is under development or is in a planning stage by the Company.
(c) Employee will not induce or persuade other employees of the Company
to join him in any activity prohibited by Paragraph 11 or 12.
(d) This Paragraph 11 and Paragraph 12, 13 and 14 shall survive the
expiration or termination of the Employment Term for any reason.
(e) It is expressly agreed by Employee that the nature and scope of each
of the provisions set forth in Paragraphs 11 and 12 are reasonable and
necessary. If, for any reason, any aspect of these provisions as they apply to
Employee is determined by a court of competent jurisdiction to be unreasonable
or unenforceable, the provisions shall only be modified to the minimum extent
required to make the provisions reasonable and/or enforceable, as the case may
be. Employee acknowledges and agrees that his services
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are of a unique character and expressly grants to the Company or any subsidiary,
successor or assignee of the Company, the right to enforce the provisions above
through the use of all remedies available at law or in equity, including, but
not limited to, injunctive relief.
12. Company Property
(a) Any patents, inventions, discoveries, applications, processes or
designs, devised, planned, applied, created, discovered or invented by Employee
in the course of Employee's employment under this Agreement and which pertain to
any aspect of the Company's or its respective subsidiaries' or affiliates'
businesses shall be the sole and absolute property of the Company, and Employee
shall make prompt report thereof to the Company and promptly execute any and all
documents reasonably requested to assure the Company the full and complete
ownership thereof.
(b) All records, files, lists, including computer generated lists,
drawings, documents, equipment and similar items relating to the Company's
business which Employee shall prepare or receive from the Company shall remain
the Company's sole and exclusive property. Upon termination of the Employment
Term, or, if earlier, upon demand by the Company, Employee shall promptly return
to the Company all property of the Company in his possession. Employee further
represents that he will not copy or cause to be copied, print out or cause to be
printed out any software, documents or other materials originating with or
belonging to the Company. Employee covenants that, upon termination of his
employment with the Company, he will not retain in his possession any such
software, documents or other materials.
13. Remedy
It is mutually understood and agreed that Employee's services are special,
unique, unusual, extraordinary and of an intellectual character giving them a
peculiar value, the loss of which cannot be reasonably or adequately compensated
in damages in an action at law. Accordingly, in the event of any breach of this
Agreement by Employee, including, but not limited to, the breach of the
nondisclosure, non-solicitation and non-compete clauses under Paragraphs 11 and
12 hereof, the Company shall be entitled to equitable relief by way of
injunction or otherwise in addition to damages the Company may be entitled to
recover. Nothing herein shall be deemed to restrict any remedy available to
Employee for breach of the Agreement by the Company.
14. Representations and Warranties of Employee and the Company
(a) In order to induce the Company to enter into this Agreement,
Employee hereby represents and warrants to the Company as follows: (i) Employee
has the legal capacity and unrestricted right to execute and deliver this
Agreement once to perform all of his obligations hereunder: (ii) the execution
and delivery of this Agreement by Employee and the performance of his
obligations hereunder will not violate or be in conflict with any fiduciary or
other duty, instrument, agreement, document, arrangement or other understanding
to which Employee is a party or by which he is or may be bound or subject; and
(iii) Employee is not a party to any instrument, agreement, document,
arrangement or other understanding with any person (other than the Company)
requiring or restricting the use or disclosure of any confidential information
or the provision of any employment, consulting or other services.
(b) The Company hereby represents and warrants to Employee, as follows:
(i) the execution, delivery, and performance of this Agreement has been duly
authorized by all necessary corporate action of the Company; and (ii) this
Agreement constitutes the valid and binding obligation of the Company,
enforceable in accordance with its terms, except that such enforcement may be
subject to any bankruptcy, insolvency, reorganization, fraudulent transfer or
other laws, now or hereafter in effect, relating to or limiting creditors'
rights generally.
15. Notices
All notices given hereunder shall be in writing and shall be deemed
effectively given when mailed, if sent by registered or certified mail, return
receipt requested, addressed to Employee at his address set forth on the first
page of this Agreement, and to the Company at its address set forth on the first
page of this Agreement, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Co-Chairman of the Board, with
a copy to ▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, or at such address as such party
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shall have designated by a notice given in accordance with this Paragraph 15, or
when actually received by the party for whom intended, if sent by any other
means.
16. Entire Agreement
This Agreement constitutes the entire understanding of the parties with
respect to its subject matter and no change, alteration or modification hereof
may be made except in writing signed by the parties hereto. Any prior or other
agreements, promises, negotiations or representations not expressly set forth in
this Agreement are of no force or effect.
17. Severability
If any provision of this Agreement shall be unenforceable under any applicable
law, then notwithstanding such unenforceability, the remainder of this Agreement
shall continue in full force and effect.
18. Waivers, Modifications, Etc.
No amendment, modification or waiver of any provision of this Agreement shall
be effective unless the same shall be in writing and signed by each of the
parties hereto, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
19. Assignment
Neither this Agreement. nor any of Employee's rights, powers, duties or
obligations hereunder, may be assigned by Employee. This Agreement shall be
binding upon and inure to the benefit of Employee and his heirs and legal
representatives and the Company and its successors and assigns. Successors of
the Company shall include, without limitation, any corporation or corporations
acquiring, directly or indirectly, all or substantially all of the assets of the
Company, whether by merger, consolidation, purchase, lease or otherwise, and
such successor shall thereafter be deemed "the Company" for the purpose hereof.
20. Applicable Law
This Agreement shall be deemed to have been made, drafted, negotiated and the
transactions contemplated hereby consummated and fully performed in the State of
New York and shall be governed by and construed in accordance with the laws of
the State of New York, without regard to the conflicts of law rules thereof.
Nothing contained in this Agreement shall be construed so as to require the
commission of any act contrary to law, and whenever there is any conflict
between any provision of this Agreement and any statute, law, ordinance, order
or regulation, contrary to which the parties hereto have no legal right to
contract, the latter shall prevail, but in such event any provision of this
Agreement so affected shall be curtailed and limited only to the extent
necessary to bring it within the legal requirements.
21. Jurisdiction and Venue
It is hereby irrevocably agreed that all actions, suits or proceedings between
the Company and Employee arising out of, in connection with or relating to this
Agreement shall be exclusively heard and determined in, and the parties do
hereby irrevocably submit to the exclusive jurisdiction of, the Supreme Court of
the State of New York for Nassau or Suffolk County or the United States District
Court for the Eastern District of New York. The parties also agree that a final
judgment in any such action, suit or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. The parties hereby unconditionally waive any objection which
either of them may now or hereafter have to the venue of any such action, suit
or proceeding brought in any of the aforesaid courts, and waive any claim that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
22. Full Understanding
Employee represents and agrees that he fully understands his right to discuss
all aspects of this Agreement with his private attorney, that to the extent, if
any, that he desired, he availed himself of this right, that he has carefully
read and fully understands all of the provisions of this Agreement, that he is
competent to execute this Agreement. that his agreement to execute this
Agreement has not been obtained by any
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duress and that he freely and voluntarily enters into it, and that he has read
this document in its entirety and fully understands the meaning, intent and
consequences of this document which is that it constitutes an agreement of
employment.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date written below.
FIRST PRIORITY GROUP, INC.
By:___________________________ Dated:______________________
Title:__________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By:___________________________ Dated:______________________
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