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Exhibit 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “
Agreement ”) is
made and entered into as of the 4th day of September, 2007, by and
between Rubicon Financial Incorporated, a Delaware corporation
(“ Rubicon ”), and Tom Collier (“ Collier ”).
W I T N E S S E T H:
WHEREAS, the officers, managers and/or directors of
Rubicon are of the opinion that Collier has education, experience
and/or expertise which is of value to Rubicon and its stockholders,
and
WHEREAS, Rubicon and Collier desire to enter into
this Employment Agreement, pursuant to which Collier shall be
employed by Rubicon, to set forth the respective rights, duties and
obligations of the parties hereto.
NOW THEREFORE, in consideration of the promises and
covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which the parties
hereto acknowledge Rubicon and Collier agree as follows:
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1.
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EMPLOYMENT. Rubicon
hereby agrees to employ Collier and Collier hereby accepts such
employment, upon the terms and conditions hereinafter set
forth.
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2.
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TERM. For purposes of
this Agreement, “ Term
” shall mean the original term (as defined
in Section 2.1 below), if Renewal Term is initiated, then “Term”
shall mean the renewal term period.
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2.1
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Original Term: The Term
of this Agreement shall commence on September 1, 2007 and expire on
August 31, 2008, unless sooner terminated pursuant to the terms and
provisions herein stated.
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2.2
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Renewal: At any time
prior to the expiration of the Original Term, as stated above,
Rubicon and Collier may, by mutual written agreement, extend
Collier’s employment under the terms of this Agreement for
such additional periods as they may agree.
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3.1
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Salary: Rubicon shall
pay Collier a base salary of Seven Thousand Five Hundred Dollars
($7,500) per month during the Term of this Agreement. Such salary
shall be payable in accordance with Rubicon’s normal policies
but in no event less often than semi-monthly (the “
Salary ”).
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3.2
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Restricted Stock Grant: Rubicon shall issue to Collier Fifty Thousand (50,000) shares
of Rubicon’s restricted common stock over a three-year period
as follows:
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3.2.1
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One Thousand Three Hundred Eighty-Nine (1,389)
shares shall be issued on or before the fifth day of each month
subsequent month following execution of this Agreement, with the
final issuance occurring in September 2010, assuming Collier
remains employed for the entire Term of this Agreement and
continues to be employed by Rubicon or any of its subsidiaries for
the entire thirty-six (36) month period (i.e. – should
Collier’s employment be terminated the subsequent monthly
issuance shall be void and Collier will only retain any shares
issued through the termination date of his employment. For example,
if Collier’s employment is terminated on December 31, 2007,
Collier shall be entitled to and be issued four installments [5,556
shares] the remaining 44,444 shares shall not be issued and the
agreement to issue shall become null and void); and
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3.2.2
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Assuming Collier remains employed by Rubicon or any
of its subsidiaries, the final issuance following the 36-month
period shall be for One Thousand Three Hundred Eighty-Five (1,385)
shares.
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The certificates evidencing such shares shall
contain the following restrictive legend:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, (THE “ACT”), OR THE SECURITIES LAWS OF ANY
OTHER JURISDICTION, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED, OR OTHERWISE DISPOSED OF IN ANY MANNER UNLESS THEY
ARE REGISTERED UNDER SUCH ACT AND THE SECURITIES LAWS OR ANY
APPLICABLE JURISDICTIONS OR UNLESS PURSUANT TO ANY EXEMPTION
THEREFROM.
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3.3
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Stock Option Plan/Stock Purchase Plan:
Collier shall be eligible to participate in
Rubicon’s Stock Option Plans and Stock Purchase Plans, if
any, during the term of employment.
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4.1
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General Benefits: Collier shall be entitled to receive or participate in all
benefit plans and programs of Rubicon currently existing or
hereafter made available to executives or senior management of
Rubicon, including but not limited to, dental and medical
insurance, pension and profit sharing plans, 401(k) plans,
incentive savings plans, stock option plans, group life insurance,
and other fringe benefits.
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4.2
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Vacation: Collier shall
be entitled during each twelve (12) month period during the Term of
this Agreement to a vacation of two (2) weeks during which time
Collier’s compensation will be paid in full. Unused days of
vacation will be compensated in accordance with Rubicon’s
policy as established by Rubicon from time to time. Collier may
take the vacation periods at any time during the year as long as
Collier schedules time off as to not create hardship on Rubicon. In
addition, Collier shall have such other days off as shall be
determined by Rubicon and shall be entitled to paid sick leave and
paid holidays in accordance with Rubicon’s policy.
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4.3
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Business Expenses: Collier shall be entitled to receive proper reimbursement for
all reasonable out-of-pocket expenses incurred directly by Collier
in performing Collier’s duties and obligations under this
Agreement up to $500.00 per month without prior authorization. Any
single expense over $200.00 shall require approval in advance by
Joseph Mangiapane, Jr. or his assignee. Rubicon shall reimburse
Collier for such expenses on a monthly basis, upon submission by
Collier of appropriate receipts, vouchers or other documents in
accordance with Rubicon’s T&E policy.
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5.1
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Position: Collier is
employed as Vice President of Information Technology (IT) and shall
perform such services and duties as are defined in
Addendum A , Job
Description, attached hereto, and as are normally associated with
such position, subject to the direction, supervision and rules and
regulations of Rubicon.
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5.2
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Place of Employment: The place of Collier’s employment and the performance of
Collier’s duties will be at Rubicon’s corporate
headquarters or at such location as agreed upon by Rubicon and
Collier.
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5.3
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Extent of Services: Collier shall at all times and to the best of his ability
perform his duties and obligations under this Agreement in a
reasonable manner consistent with the interests of Rubicon. The
precise services of Collier may be extended or curtailed, from time
to time at the discretion of Rubicon, and Collier agrees to render
such different and/or additional services of a similar nature as
may be assigned from time to time by Rubicon.
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5.3.1 Except as otherwise agreed by Rubicon
and Collier in writing, it is expressly understood and agreed that
Collier’s employment is fulltime and of a critical nature to
the success of Rubicon and is therefore exclusive. Collier may not
be employed by other entities or otherwise perform duties and
undertakings on behalf of others or for his own interest unless
pre-approved by the Board of Directors. Unless otherwise agreed by
Rubicon
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and Collier in writing, employment of Collier at
less than full time shall not affect the vesting of the Restricted
Shares pursuant to this Agreement.
5.3.2 Additionally, Rubicon recognizes that
Collier has, or may have in the future, non-passive equity
positions in other companies, which either: (a) are listed
on Addendum B attached hereto; or (b) do not compete with Rubicon in the
reasonable judgment of the Board of Directors. Rubicon recognizes
that such equity positions may occasionally require some limited
attention from Collier during normal business hours. However,
Collier agrees that if such time is considered excessive by the
Board of Directors, Collier shall be so advised and noticed by
Rubicon and Collier shall be required to make appropriate
adjustments to ensure his duties and obligations under this
Agreement are fulfilled.
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6.
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TERMINATION. The Term
of this Agreement shall end upon its expiration pursuant to
Section 2 hereof,
provided that this Agreement shall terminate prior to such date:
(a) upon Collier’s resignation, death or permanent disability
or incapacity; or (b) by Rubicon at any time for “
Cause ” (as
defined in Section 6.4
below) or without Cause.
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6.1
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BY RESIGNATION . If
Collier resigns with “ Good
Reason ” (as defined below), this
Agreement shall terminate but, Co
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