EXHIBIT 10.6
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered into by and
between UNISERVICE CORPORATION, a corporation organized and existing under the
laws of the State of Florida and having its executive offices at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Company"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
whose address is ▇▇▇▇▇▇▇▇▇▇ #▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇▇▇")
on January 5, 1998, but shall be effective as of the effective date of the
initial public offering of the Company's securities ("Effective Date") pursuant
to a registration statement filed with the Securities and Exchange Commission on
Form SB-2 ("IPO").
W I T N E S S T H:
WHEREAS, ▇▇. ▇▇▇▇▇▇▇▇ is currently serving as President and Chief
Executive Officer of the Company and as Chairman of the Company's Board of
Directors (the "Board"); and
WHEREAS, the Company desires to secure for itself the continued
availability of ▇▇. ▇▇▇▇▇▇▇▇'▇ services; and
WHEREAS, for purposes of securing for the Company ▇▇. ▇▇▇▇▇▇▇▇'▇
services, the Board has approved and authorized the execution of this Agreement
with ▇▇. ▇▇▇▇▇▇▇▇ on the terms and conditions set forth herein; and
WHEREAS, ▇▇. ▇▇▇▇▇▇▇▇ is willing to continue to make his services
available to the Company on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and obligations hereinafter set forth, the Company and ▇▇. ▇▇▇▇▇▇▇▇
hereby agree as follows:
SECTION 1. EMPLOYMENT
The Company hereby agrees to continue the employment of ▇▇. ▇▇▇▇▇▇▇▇
and ▇▇. ▇▇▇▇▇▇▇▇ hereby agrees to continue such employment during the period and
upon the terms and conditions set forth in this Agreement.
SECTION 2. EMPLOYMENT PERIOD
Except as otherwise provided in this Agreement to the contrary, the
terms and conditions of this Agreement shall be and remain in effect during the
period of employment ("Employment Period") established under this Section 2. The
Employment Period shall be for a term of three (3) years commencing on the
Effective Date and shall automatically be extended for each successive year
thereafter unless (i) the parties mutually agree in writing to alter or amend
the terms of the Agreement; or (ii) one or both of the parties exercises their
right, pursuant to this Agreement, to terminate this employment relationship.
SECTION 3. DUTIES
▇▇. ▇▇▇▇▇▇▇▇ shall serve as President and Chief Executive Officer of
the Company. ▇▇. ▇▇▇▇▇▇▇▇'▇ responsibilities, duties and authority as President
and Chief Executive Officer of the Company shall, subject to the direction of
the Board and the By-laws of the Company and any applicable provisions of the
Florida Business Corporation Act ("Corporation Act"), be those commonly
associated with such position and shall include, but shall not be limited to,
the employment, general supervision and direction of all operating officers, the
employment, general supervision and direction of the Company's personnel and
planning for the Company's long-term needs and objectives. ▇▇. ▇▇▇▇▇▇▇▇ shall be
responsible for the general supervision and management of the business affairs
of the Company, and, under authority given to him by the Board, shall execute
documents in the name of the Company and do such other official acts on behalf
of the Company as are appropriate and permitted by the By-laws of the Company.
▇▇. ▇▇▇▇▇▇▇▇ shall serve as President and Chief Executive Officer of any and all
subsidiaries hereafter created by the Company during the Employment Period
without additional compensation therefor.
SECTION 4. COMPENSATION
(a) BASE SALARY. In consideration for the services rendered by ▇▇.
▇▇▇▇▇▇▇▇ under this Agreement, the Company shall pay to ▇▇ ▇▇▇▇▇▇▇▇ a salary at
an annual rate equal to Eighty Thousand Dollars ($80,000.00). The annual salary
payable under this Section 4(a) shall be paid in approximately equal
installments in accordance with the Company's customary payroll practices.
(b) BONUSES. In addition to the salary provided under Section 4(a), ▇▇.
▇▇▇▇▇▇▇▇ shall be entitled to receive a bonus (initially for the first year of
this Agreement of up to $100,000), at the times and in the amounts and
determined in such reasonable manner as may be prescribed by the Board from time
to time.
(c) ADDITIONAL ANNUAL COMPENSATION. In addition to the salary provided
under Section 4(a) and the Bonuses provided under Section 4(b), ▇▇. ▇▇▇▇▇▇▇▇
shall be entitled to receive additional annual compensation of $90,000 which
includes (i) $15,000 for school expenses for ▇▇. ▇▇▇▇▇▇▇▇'▇ children, (ii)
$10,000 for entertainment, (iii) $20,000 for travel, (iv) $20,000 for medical
reimbursement, and (v) $28,000 for automobile expenses, including the cost of
vehicle, maintenance and insurance.
(d) ISAPRE. In addition to the compensation described in Sections 4(a),
(b) and (c) above, ▇▇. ▇▇▇▇▇▇▇▇ shall also be entitled to receive social
security benefits pursuant to Chilean law including without limitation, to the
Institutions and Provisional Health (ISAPRE) and Administrators of Pension Funds
(AFP).
2
SECTION 5. EMPLOYEE BENEFIT PLANS AND PROGRAMS
(a) ▇▇. ▇▇▇▇▇▇▇▇ shall be entitled to a minimum of four (4) weeks of
paid vacation in each calendar year, all of which shall be deemed accrued,
earned and available for use on the first day of the year.
(b) The Company shall also purchase or lease, for ▇▇. ▇▇▇▇▇▇▇▇'▇
exclusive use, a beeper and cellular telephone of his choice and shall pay, or
reimburse ▇▇. ▇▇▇▇▇▇▇▇ for his payment of, all charges relating thereto.
(c) Except as otherwise provided in this Agreement, ▇▇. ▇▇▇▇▇▇▇▇ shall,
during the Employment Period, be entitled to participate in and receive benefits
under the Company's group life, health (including hospitalization, medical and
major medical), dental, accident and long term disability insurance plans, and
such other employee benefit plans and programs, including, but not limited to,
any pension plans, incentive compensation plans or programs (whether or not
employee benefit plans or programs), and any stock option and appreciation
rights plan, employee stock ownership plan and restricted stock plan, as may
from time to time be maintained by, or cover executive and/or employees of, the
Company, in accordance with the terms and conditions of such benefit plans and
programs and compensation plans and programs and with the Company's customary
practices.
SECTION 6. INVESTMENTS AND OTHER BUSINESS INTERESTS
▇▇. ▇▇▇▇▇▇▇▇ may engage in personal business and investment activities
for his own account including, without limitation, serving on boards of
directors and engaging in charitable and community affairs; provided, however,
that such personal business and investment activities shall not materially
interfere with the performance of his duties under this Agreement and shall in
all events be subject to the provisions of Section 10 hereof.
SECTION 7. WORKING FACILITIES AND EXPENSES
▇▇. ▇▇▇▇▇▇▇▇'▇ principal place of employment shall be at the Company's
executive offices at the address first above written, or at such other location
as the Company and ▇▇. ▇▇▇▇▇▇▇▇ may mutually agree upon. The Company shall
provide ▇▇. ▇▇▇▇▇▇▇▇ at his principal place of employment with a private office,
secretarial services and other support services and facilities suitable to his
position with the Company and necessary or appropriate in connection with the
performance of his assigned duties under this Agreement. The Company shall
reimburse ▇▇. ▇▇▇▇▇▇▇▇ for his ordinary and necessary business expenses,
including, without limitation, fees for memberships in one business or social
club of his choice (up to maximum cost of $5,000 per year) and in such other
clubs and organizations as ▇▇. ▇▇▇▇▇▇▇▇ and the Company shall mutually agree are
necessary and appropriate for business purposes, and his travel and
entertainment expenses incurred in connection with the performance of his duties
under this Agreement upon presentation to the Company of an itemized account of
such expenses in such form as the Company may reasonably require.
3
SECTION 8. TERMINATION OF EMPLOYMENT WITH COMPANY LIABILITY
(a) In the event that ▇▇. ▇▇▇▇▇▇▇▇'▇ employment with the Company shall
terminate during the Employment Period on account of:
(i) ▇▇. ▇▇▇▇▇▇▇▇'▇ voluntary resignation from employment with
the Company within ninety (90) days after the occurrence, without the
express written consent of ▇▇. ▇▇▇▇▇▇▇▇, of any of the following:
(A) the failure of the Company's Board to appoint or
re-appoint or elect or re-elect ▇▇. ▇▇▇▇▇▇▇▇ to the offices of
President and Chief Executive Officer (or a more senior office) of the
Company;
(B) the failure of the stockholders of the Company to
elect or re-elect ▇▇. ▇▇▇▇▇▇▇▇ as Chairman of the Board and a Director
of the Company;
(C) a material failure of the Company, whether by
amendment of the Company's Articles of Incorporation or By-laws, action
of the Board or the Company's stockholders or otherwise, to vest in ▇▇.
▇▇▇▇▇▇▇▇ the functions, duties, or responsibilities prescribed in
Section 3 of this Agreement or the By-Laws of the Company or any
significant change in any of the foregoing;
(D) a material breach of this Agreement by the
Company;
(E) a "Change of Control" (as hereinafter defined) of
the Company; as used herein, a "Change of Control" shall mean:
(a) individuals who as of the date hereof
constitute the Board (the "Incumbent Board") cease for any
reason to constitute a majority of the Board other than
through action by the Board in creating and filling vacancies
on the Board; or
(b) either
(i) the acquisition, after the
completion of the IPO, by any individual, entity or
group (within the meaning of Section 13 (d)(3) or 14
(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (a "Person"), of
beneficial ownership (within the meaning of Rule 1
3d-3 promulgated under the Exchange Act) of voting
securities of the Company where such acquisition
causes such Person to own 35% or more of the
outstanding voting securities of the Company
("Securities Acquisition"); or
4
(ii) the approval by the
stockholders of the Company of a reorganization,
merger or consolidation or sale or other disposition
of all or substantially all of the assets of the
Company ("Business Combination"),
unless pursuant to such Securities Acquisition or Business
Combination (A) all or substantially all of the individuals
and entities who were the beneficial owners of the outstanding
voting securities of the Company prior to the Securities
Acquisition or Business Combination beneficially own more than
66-2/3 % of the then outstanding voting securities of the
Company (if it is the surviving corporation) or the surviving
corporation (if it is other than the Company) in substantially
the same proportions as their ownership immediately prior to
the Securities Acquisition or Business Combination, and (B) at
least a majority of the members of the Board of the surviving
corporation were members of the Incumbent Board immediately
prior to the Securities Acquisition or Business Combination;
(F) a five percent (5%) reduction in ▇▇. ▇▇▇▇▇▇▇▇'▇
compensation below the salary in effect immediately prior to such
reduction;
(G) a material reduction of ▇▇. ▇▇▇▇▇▇▇▇'▇ benefits
under any employee benefit plan, program or arrangement (for ▇▇.
▇▇▇▇▇▇▇▇ individually or as part of a group) of the Company as then in
effect or as in effect on the effective date of the Agreement, which
reduction shall not be effectuated for similarly situation employees of
the Company; or
(H) failure by a successor company to assume the
obligations under the Agreement; or
(ii) the discharge of ▇▇. ▇▇▇▇▇▇▇▇ by the Company for any
reason other than for "cause" as provided in Section 9(a);
then the Company shall provide the benefits and pay to ▇▇. ▇▇▇▇▇▇▇▇ the amounts
provided for under Section 8(b). Notwithstanding anything contained herein to
the contrary, the Company shall not be liable for the payments and benefits
under Section 8(b) in the case of (a) a resignation described in Section
8(a)(i)(C) or (1) for reasons other than failure to pay compensation due
hereunder unless ▇▇. ▇▇▇▇▇▇▇▇ has given written notice to the Company of its
breach and the Company fails to cure such breach within thirty (30) days
thereafter or ▇▇ ▇▇▇▇▇▇▇▇ has, within the twelve (12) month period ending on the
date of his resignation, given the Company written notice of a substantially
similar breach which was subsequently cured, or (b) ▇▇. ▇▇▇▇▇▇▇▇'▇ employment
with the Company shall terminate under circumstances described in this Section
8(a) which ▇▇. ▇▇▇▇▇▇▇▇ has directly and willfully caused to occur.
5
(b) Upon the termination of ▇▇. ▇▇▇▇▇▇▇▇'▇ employment with the Company
under circumstances described in Section 8(a) of this Agreement, the Company
shall pay and provide to ▇▇ ▇▇▇▇▇▇▇▇ (or, in the event of his death, to his
estate):
(i) his earned but unpaid salary as of the date of the
termination of his employment with the Company, and his earned but
unpaid bonus as of the date of his termination, pro-rated for the
fiscal quarter during which his termination occurs (based on the number
of days that he was in the Company's employ during such fiscal quarter)
if the termination is other than on the last day of a fiscal quarter;
(ii) except as provided in Section 8(b)(iv), the benefits, if
any, to which he is entitled as a former employee under the employee
benefit plans and programs and compensation plans and programs
maintained for the benefit of the Company's officers and employees;
(iii) continued life, health (including hospitalization,
medical and major medical), dental, accident and long term disability
insurance benefits, in addition to that provided pursuant to Section
8(b)(ii), and after taking into account the coverage provided by any
subsequent employer, if and to the extent necessary to provide for ▇▇.
▇▇▇▇▇▇▇▇ for the remaining unexpired Employment Period, coverage
equivalent to the coverage to which he would have been entitled if he
had continued working for the Company during the remaining unexpired
Employment Period at the highest annual rate of compensation achieved
during that portion of the Employment Period which is prior to ▇▇.
▇▇▇▇▇▇▇▇'▇ termination of employment with the Company;
(iv) within thirty (30) days following his termination of
employment with the Company and in lieu of any monetary payments to
which he may be entitled under any severance pay plan, program or
policy, a lump sum payment, in an amount equal to the present value of
the salary that ▇▇. ▇▇▇▇▇▇▇▇ would have earned at the rate set forth in
Section 4(a) if he had continued working for the Company during the
remaining unexpired Employment Period, where such present value is to
be determined using a discount rate of six percent (6%) per annum,
compounded monthly (or the compounding period corresponding to the
Company's regular payroll periods with respect to its officers, if not
monthly), such lump sum to be paid in lieu of all other payments of
salary provided for under this Agreement in respect of the period
following any such termination (other than the additional severance
payment provided for in Section 8(c) as set forth therein);
(v) within thirty (30) days following his termination of
employment with the Company, a lump sum payment in an amount equal to
the excess, if any, of: (A) the present value of the benefits to which
he would be entitled under any benefit plans maintained by, or covering
employees of, the Company if he were 100% vested thereunder and had
continued working for the Company during the remaining unexpired
employment period at the highest annual rate of compensation achieved
during that portion of the Employment Period which is prior to ▇▇.
▇▇▇▇▇▇▇▇'▇ termination of
6
employment with the Company, over (B) the present value of the benefits
to which he is actually entitled under any benefit plans maintained by,
or covering employees of, the Company as of the date of his
termination, where such present values are to be determined using a
discount rate of six percent (6%) per annum, compounded monthly;
(vi) within thirty (30) days following his termination of
employment with the Company a lump sum cash payment in the amount of
the payments that would have been made to ▇▇. ▇▇▇▇▇▇▇▇ (in cash and
stock) under Section 4(b) of this Agreement if he had continued working
for the Company during the remaining unexpired Employment Period and
had earned an annual bonus payment for each fiscal quarter equal to the
highest amount, if any, actually paid to ▇▇. ▇▇▇▇▇▇▇▇ for any fiscal
quarter pursuant to Section 4(b);
(vii) at the election of ▇▇. ▇▇▇▇▇▇▇▇ made within thirty (30)
days following his termination of employment with the Company, upon the
surrender of options or appreciation rights issued to ▇▇. ▇▇▇▇▇▇▇▇
under any stock option and appreciation rights plan or program or
restricted stock plan maintained by, or covering employees of, the
Company, a lump sum payment in an amount equal to the product of:
(A) in the case of a stock option or
appreciation rights plan or program:
(I) the excess of (A) the fair
market value of a share of stock of the same class as
the stock subject to the option or appreciation
right, determined as of the date of termination of
employment, over (B) the exercise price per share for
such option or appreciation right, as specified in or
under the relevant plan or program; multiplied by
(II) the number of shares with
respect to which options or appreciation rights are
being surrendered; and
(B) in the case of a restricted stock plan:
(I) the fair market value of a
share of stock of the same class of stock granted
under such plan, determined as of the date of ▇▇
▇▇▇▇▇▇▇▇'▇ termination of employment; multiplied by
(II) the number of shares which are
being surrendered.
For purposes of this Section 8(b)(vii) and for purposes of determining ▇▇.
▇▇▇▇▇▇▇▇'▇ right following his termination of employment with the Company to
exercise any options or appreciation rights not surrendered pursuant hereto, ▇▇.
▇▇▇▇▇▇▇▇ shall be deemed fully vested in all options and appreciation rights
under any stock option or appreciation rights plan or
7
program maintained by, or covering employees of, the Company, even if he is not
vested under such plan or program.
(c) In the event that a termination of employment occurs pursuant to
Section 8(a) on or after November 1, 1999, then in addition to all of the
payments and benefits which the Company shall pay or provide pursuant to Section
8(b), the Company shall also pay to ▇▇. ▇▇▇▇▇▇▇▇ (or his estate, as applicable)
within thirty (30) days following his termination of employment, the following
severance payments:
(A) a lump sum cash payment in an amount equal to the
difference between the amounts actually paid relating to ▇▇. ▇▇▇▇▇▇▇▇'▇
salary under Section 8(b) and an amount equal to two (2) times ▇▇
▇▇▇▇▇▇▇▇'▇ annual salary, based upon the greater of ▇▇. ▇▇▇▇▇▇▇▇'▇
salary (i) immediately prior to the effective date of termination or
(ii) as of ninety (90) days prior to the effective date of termination;
plus
(B) a lump sum cash payment in an amount equal to the highest
annual bonus payment, if any, that was actually paid to ▇▇. ▇▇▇▇▇▇▇▇
(in cash and stock) for any fiscal year pursuant to Section 4(b).
(d) The Company and ▇▇. ▇▇▇▇▇▇▇▇ hereby stipulate that the damages
which may be incurred by ▇▇. ▇▇▇▇▇▇▇▇ following any termination of employment
pursuant to Section 8(a) are not capable of accurate measurement as of the date
first above written and that the payments and benefits contemplated by Section
8(b) and 8(c) constitute reasonable damages under the circumstances and shall be
payable without any requirement of proof of actual damage and without regard to
▇▇. ▇▇▇▇▇▇▇▇'▇ efforts, if any, to damages.
(e) In the event of the death of ▇▇. ▇▇▇▇▇▇▇▇ during the Employment
Period of the Agreement, salary shall be paid to ▇▇ ▇▇▇▇▇▇▇▇'▇ designated
beneficiary, or, in the absence of such designation, to the estate or other
legal representative of ▇▇. ▇▇▇▇▇▇▇▇ for a period of up to the date of death.
Other death benefits will be determined in accordance with the terms of the
Company's benefit programs and plans.
(f) In the event of ▇▇. ▇▇▇▇▇▇▇▇'▇ disability, as hereinafter defined,
▇▇. ▇▇▇▇▇▇▇▇ shall be entitled to compensation in accordance with the Company's
disability compensation practice for senior executives, including any separate
arrangement or policy covering ▇▇. ▇▇▇▇▇▇▇▇, but in all events ▇▇. ▇▇▇▇▇▇▇▇
shall continue to receive ▇▇. ▇▇▇▇▇▇▇▇'▇ salary for a period, at the annual rate
in effect immediately prior to the commencement of disability, of not less than
180 days from the date on which the disability has been deemed to occur as
hereinafter provided below. "Disability" for the purposes of this Agreement,
shall be deemed to have occurred in the event (A) ▇▇. ▇▇▇▇▇▇▇▇ is permanently
unable by reason of sickness or accident to perform ▇▇. ▇▇▇▇▇▇▇▇'▇ duties under
this Agreement for a continuous period of 180 days. Termination due to
disability shall be deemed to have occurred upon the first day of the month
following the determination of disability as defined in the preceding sentence.
8
(g) In the event of termination as a result of ▇▇. ▇▇▇▇▇▇▇▇'▇ death or
disability, and in addition to the payments set forth in Sections 8(e) or 8(f),
as the case may be, ▇▇. ▇▇▇▇▇▇▇▇ (or his estate) shall also be paid his earned
but unpaid bonus as of the date of his termination, pro-rated for the fiscal
quarter during which his termination occurs (based on the number of days he was
in the Company's employ during such fiscal quarter) if the date of termination
is other than on the last day of a fiscal quarter; and the provisions of such
other benefits, if any, to which he is entitled as a former employee under this
Agreement and the employee benefit plans and programs and compensation plans and
programs maintained by, or covering employees of, the Company.
SECTION 9. TERMINATION WITHOUT ADDITIONAL COMPANY LIABILITY
In the event that ▇▇. ▇▇▇▇▇▇▇▇'▇ employment with the Company shall
terminate during the Employment Period on account of:
(a) the discharge of ▇▇. ▇▇▇▇▇▇▇▇ for "cause" which, for purposes of
this Agreement, shall mean his repeated and gross negligence in the fulfillment
of, or repeated failure of ▇▇. ▇▇▇▇▇▇▇▇ to fulfill, his material obligation
under this Agreement, in either event after due written notice thereof (which
notice requirement shall be deemed satisfied if due written notice of a
substantially similar act or omission shall have been given within three (3)
months prior to such discharge), or willful misconduct by ▇▇. ▇▇▇▇▇▇▇▇ in
respect of his obligations hereunder, or his conviction of a felony under the
laws of the United States or any State, but only if such gross negligence,
repeated failure, willful misconduct or conviction materially impairs his
ability to effectively perform his duties under this Agreement; provided,
however, that cause shall not include, without limitation:
(i) the refusal by ▇▇. ▇▇▇▇▇▇▇▇ of an assignment not
consistent with the status, titles and reporting requirements set forth
herein or contemplated hereby; or
(ii) bad judgment or negligence of ▇▇. ▇▇▇▇▇▇▇▇; or
(iii) any act or omission (other than one constituting a
material breach of trust committed in willful and reckless disregard of
the interests of the Company and undertaken for personal gain) in
respect of which a determination could properly have been made by the
Board that ▇▇. ▇▇▇▇▇▇▇▇ met the applicable standard of conduct
prescribed for indemnification or reimbursement under the By-Laws of
the Company or the laws of the State in which the Company is then
chartered, in each case in effect at the time of such act or omission;
or
(iv) any act or omission with respect to which notice of
termination is given more than three (3) months after the earliest date
on which any non-employee director of the Company who was not a party
to such act or omission knew or should have known of such act or
omission; or
9
(b) ▇▇. ▇▇▇▇▇▇▇▇'▇ voluntary resignation from employment with the
Company for reasons other than those specified in Section 8(a)(i);
then the Company shall have no further obligations under this Agreement, other
than the payment to ▇▇. ▇▇▇▇▇▇▇▇ of his earned but unpaid salary as of the date
of the termination of his employment; his earned but unpaid bonus as of the date
of his termination, pro-rated for the fiscal quarter during which his
termination occurs (based on the number of days he was in the Company's employ
during such fiscal quarter) if the date of termination is other than on the last
day of a fiscal quarter; and the provisions of such other benefits, if any, to
which he is entitled as a former employee under this Agreement and the employee
benefit plans and programs and compensation plans and programs maintained by, or
covering employees of, the Company.
SECTION 9A. SEVERANCE AT EXPIRATION OF EMPLOYMENT PERIOD
In the event that at the expiration of the Employment Period, ▇▇
▇▇▇▇▇▇▇▇'▇ employment is not continued for any reason, then the Company shall
pay to ▇▇. ▇▇▇▇▇▇▇▇ (or his estate, as applicable) his earned but unpaid salary
as of the date of the termination of his employment and his earned but unpaid
bonus, if any, as of the date of his termination, pro-rated for the fiscal
quarter during which his termination occurs (based on the number of days he was
in the Company's employ during such fiscal quarter) if the date of termination
is other than on the last day of a fiscal quarter; shall provide to ▇▇. ▇▇▇▇▇▇▇▇
all of the benefits, if any, to which he is entitled as a former employee under
this Agreement and the employee benefit plans and programs and compensation
plans and programs maintained by, or covering employees of, the Company; and, in
addition, shall pay to ▇▇. ▇▇▇▇▇▇▇▇ an amount equal to the aggregate of the
highest salary and bonus earned by ▇▇. ▇▇▇▇▇▇▇▇ during any calendar year during
the Employment Period.
SECTION 10. COVENANT NOT TO COMPETE
▇▇. ▇▇▇▇▇▇▇▇ hereby covenants and agrees that, during the Employment
Period and in the event of his termination of employment with the Company prior
to the expiration of the Employment Period, for a period of one (1) year
following the date of his termination of employment with the Company (or, if
less, for the remaining unexpired Employment Period), he shall not, without the
written consent of the Company, become an officer, employee, consultant,
director or trustee of any entity, or any direct or indirect subsidiary or
affiliate of any such entity, that directly or indirectly competes with this
Company in providing services to the gay community in any market area in which
it is active; provided, however, that this Section 10 shall not apply if ▇▇.
▇▇▇▇▇▇▇▇'▇ employment is terminated for the reasons set forth in Section 8(a);
and, provided, further, that if ▇▇. ▇▇▇▇▇▇▇▇'▇ employment shall be terminated on
account of disability as provided in Section 9(d) of this Agreement, this
Section 10 shall not prevent ▇▇. ▇▇▇▇▇▇▇▇ from accepting any position or
performing any services if (a) he first offers, by written notice, to accept a
similar position with, or perform similar services for, the Company on
substantially the same terms and conditions and (b) the Company declines to
accept such offer within ten (10) days after such notice is given.
10
SECTION 11. CONFIDENTIALITY PROPRIETARY INFORMATION
(a) Unless he obtains the prior written consent of the Company (which
consent shall not be unreasonably withheld), ▇▇. ▇▇▇▇▇▇▇▇ shall keep
confidential and shall refrain from using for the benefit of any person or
entity other than the Company or any entity which is a subsidiary of the Company
or of which the Company is a subsidiary, any material document or information
obtained from the Company, or from its parent or subsidiaries, in the course of
his employment with any of them concerning their properties, operations or
business (unless such document or information is readily ascertainable from
public or published information or trade sources or has otherwise been made
available to the public through no fault of his own) until the same ceases to be
material (or becomes so ascertainable or available); provided, however, that
nothing in this Section 11 shall prevent ▇▇. ▇▇▇▇▇▇▇▇, with or without the
Company's consent, from participating in or disclosing documents or information
in connection with any judicial or administrative investigation, inquiry or
proceeding to the extent that such participation or disclosure is required under
applicable law.
(b) ▇▇. ▇▇▇▇▇▇▇▇ acknowledges that during the course of his employment
with the Company he may develop or otherwise acquire papers, files or other
records involving or relating to confidential or secret processes, formulas,
discoveries, inventions, machinery, plans, design information of any kind,
devices, material, research, new product development, customers or customer
lists. All such papers, files and other records shall be the exclusive property
of the Company and shall, together with any and all copies thereof, be returned
to the Company upon ▇▇ ▇▇▇▇▇▇▇▇'▇ termination of employment.
SECTION 12. SOLICITATION
▇▇. ▇▇▇▇▇▇▇▇ hereby covenants and agrees that in the event of his
termination of employment with the Company prior to the expiration of the
Employment Period, for a period of one (1) year following his termination of
employment with the Company (or, if less, the remaining unexpired Employment
Period), he shall not, without the written consent of the Company, either
directly or indirectly:
(a) solicit, offer employment to, or take any other action intended, or
that a reasonable person acting in like circumstances would expect, to have the
effect of causing any officer or employee of the Company (other than a member of
▇▇. ▇▇▇▇▇▇▇▇'▇ family) or any subsidiary of the Company to terminate his or her
employment and accept employment or become affiliated with, or provide services
for compensation in any capacity whatsoever to, any entity that directly or
indirectly competes with this Company in any market area in which it is then
active;
(b) provide any information, advice or recommendation with respect to
any officer or employee of the Company (other than a member of ▇▇. ▇▇▇▇▇▇▇▇'▇
Family) or any subsidiary of the Company to any entity engaged or to be engaged
in the same or competing business with the Company that is intended, or that a
reasonable person acting in like circumstances would expect, to have the effect
of causing any such officer or employee to terminate his or her employment
11
and accept employment or become affiliated with, or provide services for
compensation in any capacity whatsoever to, any entity that directly or
indirectly competes with the Company in any market area in which it is then
active; provided, however, that nothing in this Section 12(b) shall be construed
as prohibiting ▇▇. ▇▇▇▇▇▇▇▇ from serving as a reference if so requested by an
officer or employee of the Company or subsidiary of the Company;
(c) solicit, provide any information, advice or recommendation or take
any other action intended, or that a reasonable person acting in like
circumstances would expect, to have the effect of causing any customer of the
Company with which ▇▇. ▇▇▇▇▇▇▇▇ has had substantial contact to terminate an
existing business or commercial relationship with the Company;
provided, however, that this Section 12 shall not apply if ▇▇. ▇▇▇▇▇▇▇▇'▇
employment is terminated for any of the reasons set forth in Section 8(a).
Nothing in this Section 12 shall prevent ▇▇ ▇▇▇▇▇▇▇▇ from directly or indirectly
advertising employment opportunities or disseminating marketing materials
through newspapers of general circulation or other mass media.
SECTION 13. NO EFFECT ON EMPLOYEE BENEFIT PLANS OR PROGRAMS
The termination of ▇▇. ▇▇▇▇▇▇▇▇'▇ employment during the term of this
Agreement or thereafter, whether by the Company or by ▇▇. ▇▇▇▇▇▇▇▇, shall have
no effect on the rights and obligations of the parties hereto, which shall
continue for a period of two (2) years after ▇▇. ▇▇▇▇▇▇▇▇'▇ termination under
the Company's pension plan, group life, health (including hospitalization,
medical and major medical), dental, accident and long term disability insurance
plans or such other employee benefit plans or programs, or compensation plans or
programs (whether or not employee benefit plans or programs) and any stock
option and appreciation rights plan, employee stock ownership plan and
restricted stock plan, as may be maintained by, or cover employees of, the
Company from time to time.
SECTION 14. INDEMNIFICATION AND ATTORNEYS' FEES
The Company shall provide ▇▇. ▇▇▇▇▇▇▇▇ with payment of legal fees and
indemnification to the maximum extent permitted from time to time by the
Corporation Act or other applicable laws or regulations. ▇▇. ▇▇▇▇▇▇▇▇ shall
continue to be covered by the Articles of Incorporation and/or the Bylaws of the
Company with respect to matters occurring on or prior to the date of termination
of ▇▇. ▇▇▇▇▇▇▇▇'▇ employment with the Company, subject to all the provisions of
Florida and Federal law and the Articles of Incorporation and Bylaws of the
Company then in effect. The Company shall indemnify and hold harmless ▇▇.
▇▇▇▇▇▇▇▇ against reasonable costs, including, without limitation, legal fees and
expenses, incurred by him in connection with or arising out of any action, suit
or proceeding in which he may be involved to defend or enforce the terms of this
Agreement, without regard to whether ▇▇. ▇▇▇▇▇▇▇▇ is the prevailing party in
such action, suit or proceeding. Such reasonable expenses, including attorneys'
fees that may be covered by the Articles of Incorporation and/or Bylaws of the
Company shall be paid by the Company on a current basis in accordance with such
provision, the Company's Articles of Incorporation and applicable law. To the
extent that any such payments by the Company pursuant
12
to the Company's Articles of Incorporation and/or Bylaws may be subject to
repayment by ▇▇. ▇▇▇▇▇▇▇▇ pursuant to the provisions of the Company's Articles
of Incorporation or Bylaws, or pursuant to applicable law, such repayment shall
be due and payable by ▇▇. ▇▇▇▇▇▇▇▇ to the Company within twelve (12) months
after the termination of all proceedings, if any, which relate to such repayment
and to the Company's affairs for the period prior to the date of termination of
▇▇. ▇▇▇▇▇▇▇▇'▇ employment with the Company and as to which ▇▇. ▇▇▇▇▇▇▇▇ has been
covered by such applicable provisions.
SECTION 15. EXCISE TAX
(a) If, in connection with the termination of ▇▇. ▇▇▇▇▇▇▇▇'▇
employment, ▇▇. ▇▇▇▇▇▇▇▇ shall be liable for the payment of an excise tax under
Section 4999 of the Code with respect to any payment of money or property made
by the Company, the Company shall pay to ▇▇. ▇▇▇▇▇▇▇▇ an amount to indemnify ▇▇.
▇▇▇▇▇▇▇▇ against such excise tax and against any additional income and excise
taxes imposed on him as a result of such indemnification. With respect to any
payment that is made to ▇▇. ▇▇▇▇▇▇▇▇ under the terms of this Agreement in the
year of his termination of employment and on which an excise tax under Section
4999 of the Code will be assessed, the payment determined under this Section
15(a) shall be made to ▇▇. ▇▇▇▇▇▇▇▇ not later than thirty (30) days following
his termination of employment. With respect to any payment made under the terms
of this Agreement in any other year and on which an excise tax under Section
4999 of the Code will be assessed, the payment under this Section 15(a) shall be
made to ▇▇. ▇▇▇▇▇▇▇▇ not later than December 31 st of the year in which the
payment on which such excise tax will be assessed is made to ▇▇. ▇▇▇▇▇▇▇▇ or, if
earlier, the date on which such tax is required to be remitted to the Internal
Revenue Service The payments made by the Company under this Section 1 5(a) shall
be determined by the Company on the basis of advice from the firm of independent
certified public accountants regularly retained by the Company to audit its
books and shall be subject to subsequent adjustment as provided in Section
15(b).
(b) In the event that ▇▇. ▇▇▇▇▇▇▇▇'▇ liability for the excise tax under
Section 4999 of the Code for a taxable year is subsequently determined to be
different than the amount paid for such year pursuant to Section 15(a), ▇▇
▇▇▇▇▇▇▇▇ or the Company, as the case may be, shall pay to the other party at the
time that the amount of such excise tax is finally determined, an appropriate
amount, plus interest, such that the payment made under Section 15(a), when
increased by the amount of the payment made to ▇▇. ▇▇▇▇▇▇▇▇ under this Section
15(b) by the Company, or when reduced by the amount of the payment made to the
Company under this Section 15(b) by ▇▇. ▇▇▇▇▇▇▇▇, equals the amount finally
determined to have been properly payable to ▇▇. ▇▇▇▇▇▇▇▇ under Section 15(a).
The interest paid under this Section 15(b) shall be determined at the rate
provided under Section 1274(b)(2)(B) of the Code. To confirm that the proper
amount, if any, was paid to ▇▇. ▇▇▇▇▇▇▇▇ under this Section 15, ▇▇. ▇▇▇▇▇▇▇▇
shall furnish to the Company a copy of each tax return which reflects a
liability for an excise tax payment under Section 4999 of the Code with respect
to a payment made by the Company, at least twenty (20) days before the date on
which such return is required to be filed with the Internal Revenue Service. If
▇▇. ▇▇▇▇▇▇▇▇ fails to furnish any such return by the prescribed date, then (i)
the Company's payment obligation hereunder shall be deferred until twenty (20)
days after the date
13
on which such return is actually furnished and (ii) the Company shall have no
liability to indemnify ▇▇. ▇▇▇▇▇▇▇▇ against any excess tax payment which the
Company reasonably believes to have been made in error.
SECTION 16. SUCCESSORS AND ASSIGNS; SURVIVORSHIP
This Agreement will inure to the benefit of and be binding upon ▇▇.
▇▇▇▇▇▇▇▇, his legal representatives, heirs and assigns, and the Company, its
respective successors and assigns, including any successor by merger or
consolidation or a statutory receiver or any other person or firm or corporation
to which all or substantially all of the respective assets and business of the
Company may be sold or otherwise transferred.
SECTION 17. WAIVER
Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be made
in writing, designated as a waiver, and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
SECTION 18. NOTICES
Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in writing and shall be deemed to have been given
at such time as it is delivered personally, or five (5) days after mailing if
mailed, postage prepaid, by registered or certified mail, return receipt
requested, addressed to such party at the address listed below or at such other
address as one such party may by written notice specify to the other party:
If to ▇▇. ▇▇▇▇▇▇▇▇:
▇▇▇▇▇▇▇▇▇▇ #▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇
If to the Company:
Uniservice Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
14
with copy to:
Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
SECTION 19. SEVERABILITY
A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the validity or enforceability of any other
provision hereof.
SECTION 20. COUNTERPARTS
This Agreement may be executed in two (2) or more counterparts, each of
which shall be deemed an original, and all of which shall constitute one and the
same Agreement.
SECTION 21. GOVERNING LAW
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Florida, without reference to conflicts
of law principles.
SECTION 22. HEADINGS AND CONSTRUCTION
The headings of Sections in this Agreement are for convenience of
reference only and are not intended to qualify the meaning of any Section. Any
reference to a Section number shall refer to a Section of this Agreement, unless
otherwise stated.
SECTION 23. SURVIVAL
The rights and obligations of the Company and ▇▇. ▇▇▇▇▇▇▇▇ under
Sections 10, 11, 12, 14 and 15 of this Agreement shall survive the termination
or expiration of this Agreement, notwithstanding anything contained herein to
the contrary.
SECTION 24. EQUITABLE REMEDIES
The Company and ▇▇. ▇▇▇▇▇▇▇▇ hereby stipulate that monetary damages
shall be an inadequate remedy for violations of Sections 10, 11 and 12, of this
Agreement and agree that equitable remedies, including, without limitation, the
remedies of specific performance and injunctive relief, shall be available with
respect to the enforcement of such provisions.
SECTION 25. ENTIRE AGREEMENT, MODIFICATIONS
15
This instrument contains the entire agreement of the parties relating
to the subject matter hereof, and supersedes in its entirety any and all prior
agreements, understandings or representations relating to the subject matter
hereof. No modifications of this Agreement shall be valid unless made in writing
and signed by the parties hereto.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and ▇▇. ▇▇▇▇▇▇▇▇ has hereunto set his hand, all as of the day and year
first above written.
__________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ATTEST: UNISERVICE CORPORATION
By:________________________________ By:_______________________________
Secretary Name:
Title:
16