Exhibit 10.29
EMPLOYMENT
AGREEMENT
This EMPLOYMENT
AGREEMENT (this "Agreement") is dated as of November 27, 2006,
between Michael R. Feinsod ("Executive"), Ameritrans Capital
Corporation ("Ameritrans"), and Elk Associates Funding Corporation
"Elk") (collectively, Ameritrans and Elk are hereinafter referred
to as the "Employer").
WHEREAS, Executive is
presently employed as President of Ameritrans;
WHEREAS, Subject to
U.S. Small Business Administration ("SBA") approval, Executive
shall serve as Senior Vice President of Elk.
NOW, THEREFORE BE IT,
in consideration of the promises and the mutual covenants
hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1.
Employment of
Executive.
Effective as of
November 27, 2006, Employer hereby agrees to employ Executive, and
Executive hereby agrees to be and remain in the employ of Employer,
upon the terms and conditions hereinafter set forth.
2.
Employment
Period.
Subject to the earlier
termination as provided in Section 5, the term of Executive’s
employment under this Agreement shall commence as of November 27,
2006 (the "Effective Date"), and shall continue until May 31, 2008
(the "Initial Employment Period"). Upon the expiration of the
Initial Employment Period, if the Company is earning, on an
annualized basis, $.10 per share of Common Stock, as more fully
described in Exhibit A attached hereto, the Initial Employment
Period shall be extended until May 31, 2009, (the "Extended
Employment Period"). Unless Employer gives notice of
non-renewal at least three (3) months prior to the expiration of
the Extended Employment Period or Executive gives notice of
non-renewal at least three (3) months prior to the expiration of
the Extended Employment Period, the term of this Agreement shall be
extended for an additional one (1) year period beyond the end of
the Extended Employment Period on the same terms and conditions in
effect under this Agreement at the time of extension and providing
for an annual base salary equal to the Base Salary (as hereinafter
defined) in effect at the time of renewal, plus an annual increase
during the renewal year of greater of (i) four percent (4%) or (ii)
the increase in the Consumer Price Index during such year (the
Initial Employment Period, the Extended Employment Period and any
extension thereof is hereafter referred to as the "Employment
Period"). The parties agree that any Bonus (as hereinafter
defined) payable during any renewal period in excess of the minimum
Bonus shall be paid solely in the discretion of the Board of
Directors of Employer (the "Board").
3.
Duties and
Responsibilities.
3.1.
General
During the
Employment Period, Executive shall have the title of President of
Ameritrans and upon SBA approval, Senior Vice President of Elk, and
shall have duties commensurate with his office and title.
Executive shall report directly to and take direction from
Gary C. Granoff (the "CEO") and the Board. Executive
understands that he will be required to work with and coordinate
certain business activities with other executives of the Employer
in connection with certain projects as directed by Gary C Granoff
and the Board. Executive shall devote all of his business
time and expend his best efforts, energies, and skills to the
Employer provided, however, Executive shall be allowed to devote
such reasonable time as he deems necessary to his personal and
family business matters and to fulfill his duties as Managing
Member of Infinity Capital LLC, as such duties and responsibilities
exist on the date hereof, so long as such time and attention does
not (A) interfere with his duties and responsibilities to Employer
or (B) violate his obligations under Sections 7 and 8, herein, or
any duty, consistent with his status with Employer, as he may be
assigned from time to time by the Board, or Mr.
Granoff.
4.
Compensation and
Related Matters.
4.1.
Base
Salary
. For each
twelve-month period, commencing November 27, 2006, during the
Employment Period, (each such period, an "Employment Year"),
Employer shall pay to Executive a base salary equal to $336,500 for
the first Employment Years at the rate of $348,900 for the second
Employment Year, and at the rate of $361,800 for the third
Employment Years (with respect to each Employment Year, the "Base
Salary"). The Base Salary shall be payable in accordance with
the normal payroll procedures of Employer.
4.2.
Annual
Bonus
For each
fiscal year during the Employment Period (each, a "Bonus Year"),
Executive shall be eligible to receive a bonus for such Bonus Year
(a "Bonus"), which Bonus shall not be less than $15,000 for each
Bonus Year during the Employment Period, payable pro rata for the
first Employment year, any additional Bonus above $15,000 for each
Bonus Year shall be in the sole discretion of the Board. The
Bonus for each Bonus Year shall be payable promptly following the
determination of the Board thereof, but in no event later than 45
days after the end of such year.
4.3.
Other
Benefits
. During the
Employment Period, subject to, and to the extent Executive is
eligible under their respective terms, Executive shall be entitled
to receive up to an aggregate of $32,500 allocated by
Executive as he shall determine in his sole discretion for the
following: (i) reimbursement of Executive for the cost of the
annual premiums on term life insurance on Executive’s life,
(ii) the lease of a car, (iii) parking for Executive’s
automobile in Manhattan, (iv) tolls and gas for the automobile in
connection with commuting to work, (v) automobile insurance for one
car (vi) use of a cell phone and home telephone for business
purposes (vii) reimbursement for the premium on Executive’s
disability policy, (viii) reimbursement of Executive’s
country club dues. In addition, the Company shall pay the
Executives family medical health insurance premiums under the
Company's current plan up to $20,000, plus any increases that may
arise in future years. At such time or Executive qualifies as
a participant, Employer will also make regular contributions to
Executive’s SEP IRA account equal to 15% of Executive Base
Salary and Bonus, subject to limitations under the plan.
4.4.
Expenses
Reimbursement
. Employer shall
reimburse Executive for all business expenses reasonably incurred
by him in the performance of his duties under this Agreement upon
his presentation of signed and itemized accounts of such
expenditures, all in accordance with Employer’s procedures
and policies as adopted and in effect from time to time and
applicable to its senior management employees.
4.5.
Vacations
. Executive shall
be entitled to 20 business days vacation for the first calendar
year of this Agreement, thereafter Executive shall be entitled to
25 business days vacation for each subsequent calendar year during
the Employment Period, such vacations to be taken at such time or
times as shall not unreasonably interfere with Executive’s
performance of his duties under this Agreement. Unused
vacation days shall not carry over to future calendar
years.
4.6.
Stock
Options
.Employer has granted
to the Executive an option to purchase up to 80,000 shares of the
Company’s Common Stock. The options shall have such terms and
conditions as set forth in the stock option agreement related to
such grant. Employer shall use reasonable efforts to register
the sale of Common Stock underlying the option granted to Executive
pursuant to a Registration Statement on Form S-8, provided that
Form S-8 is available to Employer under the Securities Act of 1933
and the rules and regulations of the Securities and Exchange
Commission at the time Executive exercises such options.
4.7.
Office Space:
Resources
. Employer shall
provide Executive with sufficient office space, administrative
(secretarial) assistance, furnishings, equipment, computer
resources, and supplies considered reasonable and necessary for
Executive to carry out his duties.
5.
Termination of
Employment Period.
5.1.
Termination On May
31, 2008
. Employer shall,
with notice have the right to terminate this agreement on May 31,
2008, if certain performance criteria set forth in Exhibit A hereto
have not been met. Such determination to be made in the sole
discretion of the Board. If Executive is terminated pursuant
to this Section 5.1, no Severance Payment (or defined in section
6.1 hereof) shall be paid. Employer will be paid his Base
Salary through the date of termination on the next regular pay
date.
5.2.
Termination Without
Cause: Voluntary Termination by Executive
. Employer may,
by notice to Executive at any time during the Employment Period,
terminate the Employment Period without Cause (as defined below).
The effective date of such termination of Executive from
Employer shall be the date that is thirty (30) days following the
date on which such notice is given, except as otherwise
specifically provided herein. Executive may, by notice to
Employer at any time during the Employment Period, voluntarily
resign from Employer and terminate the Employment Period. The
effective date of such termination of Executive from Employer shall
be the date that is thirty (30) days following the date on which
such notice is given.
5.3.
By Employer for
Cause
. Employer may,
at any time during the Employment Period, by notice to Executive,
terminate the Employment Period for "Cause." As used herein,
"Cause" shall mean (i) incompetence, fraud, personal dishonesty, or
acts of gross negligence or gross misconduct on the part of
Executive in the course of his employment, (ii) an intentional
breach of this Agreement by Executive that is injurious to
Employer, (iii) substantial and continued failure by Executive to
perform his duties hereunder, (iv) willful failure by Executive to
follow the lawful directions of the CEO or the Board, (v) use of
alcohol by Executive or his illegal use of drugs (including
narcotics) which in either case is, or could reasonably expected to
become, materially injurious to the reputation or business of
Employer or which impairs, or could reasonably be expected to
impair, the performance of Executive's duties hereunder, (vi)
Executive's conviction by a court of competent jurisdiction of, or
pleading "guilty" or "no contest" to, (x) a felony, or (y) any
other criminal charge (other than minor traffic violations) which
has or could reasonably be expected to have a material adverse
impact on Employer's reputation and standing in the community, or
(vii) Executive's violation of any of the provisions of Section 7
or 8 herein. Any notice given by Employer pursuant to Section
5.3(ii), (iii), or (iv), above, shall specify in writing in
reasonable detail the nature of Executive's action or inaction that
is the cause for giving such notice. Executive will have 30
days to cure, to the reasonable satisfaction of Employer, any
action or inaction charged by Employer for Cause under (ii), (iii),
or (iv), above. In the event of a termination of the
Employment Period for Cause under (i), (v), (vi),
