EXHIBIT 10.27
EMPLOYMENT AGREEMENT
AMENDED AND RESTATED
AMENDED AND RESTATED EMPLOYMENT AGREEMENT made as of December 23, 2000
by and between ▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation (the "Company"), and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("Employee").
WHEREAS, Employee wishes to be employed by the Company with the duties
and responsibilities as hereinafter described, and the Company desires to assure
itself of the availability of Employee's services in such capacity.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Company and Employee hereby agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ Employee, and
Employee hereby agrees to serve the Company, upon the terms and conditions
hereinafter set forth.
2. TERM. The employment of Employee by the Company pursuant to
this Agreement shall commence upon execution of this Agreement and shall expire
on December 23, 2004, unless sooner terminated as hereinafter provided (the
"Term").
3. DUTIES. Employee shall be employed in the Company's Investment
Banking division of Union Atlantic Capital, L.C. and will be part of the
"Atlanta"" division, as may be renamed from time to time by the Company (the
"Atlanta Division" or the "Division"), and will serve as the Vice President in
charge of the Atlanta Division. The employee shall be responsible for those
areas in the conduct of the business reasonably assigned to him by the Company's
Chief Executive Officer or President. Employee shall serve as a full time
employee and shall devote substantially all his business time and efforts to the
business of the Company.
4. COMPENSATION AND OTHER PROVISIONS. Employee shall be entitled
to the compensation and benefits hereinafter described in subparagraphs (a)
through (d) (such compensation and benefits being hereinafter referred to as
"Compensation Benefits").
(a) COMPENSATION. Employee shall be entitled to an annual
salary, payable in equal monthly installments, as set forth on Schedule A
hereto, which shall be payable from and subject to Available Cash from Net
Operating Income of the Division, if any, as determined pursuant to the formulas
set forth on Schedule A hereto.
(b) ISSUANCE OF WARRANTS.
i) On January 23, 2001, the Company hereby
agrees to sell to grant to Employee an
Option, attached hereto as Schedule B, to
purchase 451,667 shares of common stock of
the Company (the "Shares") for $0.63 per
share. If exercised, the warrants will have
an representing an aggregate purchase price
of $284,550.21.
ii) The Employee shall have piggyback
registration rights with respect to the
Shares as attached hereto as Exhibit A.
(c) PARTICIPATION IN BENEFIT PLANS. During the Term,
Employee shall be eligible to participate in all employee benefit plans and
arrangements now in effect or which may hereafter be established, including,
without limitation, all life, group insurance and medical care plans and all
disability, retirement and other employee benefit plans of the Company, if any,
consistent with those benefits provided to employees of similar position with
the Company.
(d) OTHER PROVISIONS. Employee shall be reimbursed for
all reasonable and necessary expenses incurred by him in the performance of his
duties, subject to approval by the Company and submission of supporting
documentation reasonably satisfactory to the Company.
5. TERMINATION. Employee's employment hereunder shall terminate
as a result of any of the following events:
(a) Employee's death;
(b) Employee shall be unable to perform his duties
hereunder by reason of illness, accident or other
physical or mental disability for a continuous period
of at least three months or an aggregate of five
months during any continuous nine-month period
("Disability");
(c) termination by Employee;
(d) for Cause, where "Cause" shall mean: (i) any
defalcation or misappropriation by Employee of funds
or property of the Company or any of its affiliates
or the commission by Employee of any dishonest or
deceitful act during the course of his employment
with the Company; (ii) the breach by Employee of
Sections 9 or 10 of this Agreement; (iii) the
conviction of Employee of any felony, or a
misdemeanor involving fraud, dishonest conduct or
moral turpitude; (iv) the engaging by Employee in
personal illegal conduct which, in the reasonable
judgment of the Company, places the Company or any of
its affiliates, by association with Employee, in
disrepute; (v) the reasonable determination of the
Company's Board of Directors that Employee has
engaged in intentional misconduct, substantial
neglect of his duties, or has failed to follow
reasonable and lawful written directives of the Board
of Directors; or (vi) any attempt by Employee to
obtain a personal profit from any transaction in
which Employee has an interest adverse to the Company
unless such adverse interest and the potential profit
is disclosed in writing and delivered to and approved
by the Board in advance of such transaction including
any unauthorized compensation by Employee obtained in
connection with the Company's business or potential
business.
The Employee will be given the right to cure an
alleged "for cause" problem under 5 (d) (v) for a
period of 30 days from the date Company gives notice
of the conduct or performance giving rise to such act
of Cause; or
(e) Termination by the Company without Cause, in which
event the Company Paragraphs 10(a) and 10(b) shall be
null and void and all options granted to Employee
shall immediately vest.
Any termination pursuant to subparagraph (b), (c),
(d) or (e) of this Section shall be communicated by a
written notice ("Notice of Termination"), such notice
to set forth with specificity the grounds for
termination if the result of "Cause". Employee's
employment under this Agreement shall be deemed to
have terminated as follows: (i) if Employee's
employment is terminated pursuant to subparagraph (a)
above, on the date of his death; (ii) if Employee's
employment is terminated pursuant to subparagraph
(b), (d) or (e) above, on the date on which Notice of
Termination is given; and (iii) if Employee's
employment is terminated pursuant to subparagraph (c)
above, thirty (30) days after the date on which a
Notice of Termination is given, unless the Company
shall select a sooner date at its sole and absolute
discretion. The date on which termination is deemed
to have occurred pursuant to this paragraph is
hereinafter referred to as the "Date of Termination".
6. PAYMENTS ON TERMINATION. In the event that Employee's
employment is terminated pursuant to Section 5 above, the Company shall pay to
Employee his compensation under Section 4(a) above through the Date of
Termination.
7. LIFE INSURANCE. If requested by the Company, Employee shall
submit to such physical examinations and otherwise take such actions and execute
and deliver such documents as may be reasonably necessary to enable the Company
to obtain life insurance on the life of Employee for the benefit of the Company.
8. REPRESENTATIONS AND WARRANTIES. Employee represents and
warrants to the Company that he is under no contractual or other restriction or
obligation, which would prevent the performance of his duties hereunder or
interfere with the rights of the Company hereunder.
9. DISCLOSURE AND PROTECTION OF CONFIDENTIAL INFORMATION.
(a) For purposes of this Agreement, "Confidential
Information" means knowledge, information and material which is proprietary to
the Company, of which Employee may obtain knowledge or access through or as a
result of his employment by the Company (including information conceived,
originated, discovered or developed in whole or in part by Employee during his
employment with the Company). Confidential Information includes, but is not
limited to, (i) technical knowledge, information and material such as trade
secrets, processes, formulas, data, know-how, strategies, analytical models,
improvements, inventions, computer programs, drawings, patents, and experimental
and development work techniques, and (ii) marketing and other information, such
as supplier lists, customer lists, lists of prospective customers and
acquisition targets, marketing and business plans, business or technical needs
of customers, consultants, licensees or suppliers and their methods of doing
business, arrangements with customers, consultants, licensees or suppliers,
manuals and personnel records or data. Confidential Information also includes
any information described above which the Company obtains from another party and
which the Company treats as proprietary or designates as confidential, whether
or not owned or developed by the Company. Notwithstanding the foregoing, any
information which is or becomes available to the general public otherwise than
by breach of this Section 9 shall not constitute Confidential Information for
purposes of this Agreement.
(b) During the term of this Agreement and thereafter,
Employee agrees, to hold in confidence all Confidential Information and not to
use such information for Employee's own benefit or to reveal, report, publish,
disclose or transfer, directly or indirectly, any Confidential Information to
any person or entity, or to utilize any Confidential Information for any
purpose, except in the course of Employee's work for the Company.
(c) Employee will abide by any and all security rules and
regulations, whether formal or informal, that may from time to time be imposed
by the Company for the protection of Confidential Information, and will inform
the Company of any defects in, or improvements that could be made to, such rules
and regulations.
(d) Employee will notify the Company in writing
immediately upon receipt of any subpoena, notice to produce, or other compulsory
order or process of any court of law or government agency if such document
requires or may require disclosure or other transfer of Confidential
Information.
(e) Upon termination of employment, Employee will deliver
to the Company any and all records and tangible property that contain
Confidential Information that are in his possession or under his control.
10. COVENANT NOT TO SOLICIT.
(a) During the Service Period and for a period of one (1)
year after termination of employment, except with respect to the employees in
the Atlanta Division, Employee will not, directly or indirectly, solicit or
induce any other employee of the Company or any parent or affiliate to leave his
or her employment, or solicit or induce any consultant or independent contractor
to sever that person's relationship with the Company.
(b) If any court shall determine that the duration or
geographical limit of any covenant contained in this Section 10 is
unenforceable, it is the intention of the parties that covenant shall not
thereby be terminated but shall be deemed amended to the extent required to
render it valid and enforceable, such amendment to apply only in the
jurisdiction of the court that has made such adjudication.
(c) Employee acknowledges and agrees that the covenants
contained in Sections 9 and 10 hereof are of the essence in this Agreement, that
each of such covenants is reasonable and necessary to protect and preserve the
interests, properties, and business of the Company, and that irreparable loss
and damage will be suffered by the Company should Employee breach any of such
covenants. Employee further represents and acknowledges that he shall not be
precluded from gainful engagement in a satisfactory fashion by the enforcement
of these provisions.
11. AVAILABILITY OF INJUNCTIVE RELIEF. Employee acknowledges and
agrees that any breach by him of the provisions of Sections 9 or 10 hereof will
cause the Company irreparable injury and damage for which it cannot be
adequately compensated in damages. Employee therefore expressly agrees that the
Company shall be entitled to seek injunctive and/or other equitable relief, on a
temporary or permanent basis to prevent any anticipatory or continuing breach of
this Agreement or any part hereof. Nothing herein shall be construed as a waiver
by the Company of any right it may have or hereafter acquired to monetary
damages by reason of any
injury to its property, business or reputation or otherwise arising out of any
wrongful act or omission of it.
12. SURVIVAL. The covenants, agreements, representations and
warranties contained in or made pursuant to this Agreement shall survive
Employee's termination of employment, irrespective of any investigation made by
or on behalf of any party.
13. NOTICES. Any notice required or permitted hereunder shall be
deemed validly given if delivered by hand, verified overnight delivery, or by
first class, certified mail to the following addresses (or to such other address
as the addressee shall notify in writing to the other party):
If to Employee: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Company: ▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
with a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Steel ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
14. WAIVER. Any waiver by either party of a breach of any
provision of this Agreement shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement on one or more occasions shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. All waivers must be in writing.
15. BINDING EFFECT. The Company's rights and obligations under
this Agreement shall not be transferable by assignment or otherwise, and any
attempt to do any of the foregoing shall be void. The provisions of this
Agreement shall be binding upon the Employee and his heirs and personal
representatives, and shall be binding upon and inure to the benefit of the
Company, its successors and assigns.
16. HEADINGS. The headings in this Agreement are solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
17. GOVERNING LAW; VENUE. This Agreement is to be performed in the
State of Florida, and the validity, construction and enforcement of, and the
remedies under, this Agreement shall be governed in accordance with the laws of
the State of Florida, without giving effect to any choice of laws principles. In
the event of any litigation arising out of or relating to this Agreement,
exclusive venue shall be in Broward County, Florida.
18. ENTIRE AGREEMENT AND CANCELLATION OF PRIOR EMPLOYMENT
AGREEMENT. This writing constitutes the binding and entire agreement of the
parties superseding and extinguishing all prior agreements or understandings
regarding the subject matter hereof including the August 18, 2000 and December
18, 2000 Employment Agreement Amended and Restated ("Cancelled Agreements"). All
Second Tranche Shares and Shares as described in such Cancelled Agreements are
also hereby returned to the Company and the Promissory Note is hereby cancelled.
The parties may not modify this writing without their written agreement.
19. ARBITRATION. Any controversy or claim arising out of, or
related to this Agreement or the Promissory Note in Schedule B, or breach
thereof, shall be settled by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association sitting in
Ft. Lauderdale, Florida. Any judgment or award rendered by such arbitrator(s)
may be entered into with a court of competent jurisdiction as a final judgment
and adjudication.
20. INVALIDITY. The invalidity or unenforceability of any term of
this Agreement shall not invalidate, make unenforceable or otherwise affect any
other term of this Agreement, which shall remain in full force and effect.
21. ATTORNEYS' FEES. In the event any dispute or litigation arises
hereunder between any of the parties hereto, the prevailing party shall be
entitled to all reasonable costs and expenses incurred by it in connection
therewith (including, without limitation, all reasonable attorneys' fees and
costs incurred before and at any trial or other proceeding and at all tribunal
levels), as well as all other relief granted in any suit or other proceeding.
25. CHANGE IN CONTROL. In the event there is a change of control
of the Company, all unvested options shall immediately vest and be payable to
Employee. In the event of a "Change of Control" or a sale of all or
substantially all of the assets of the Corporation, then all non-vested Options
shall immediately vest. For purposes of this Agreement, "Change of Control"
shall mean (i) the occurrence of any event or transaction or series thereof
pursuant to which any person or group (as used in Rule 13(d)-1 of the Securities
Exchange Act of 1934, acquires beneficial ownership or control in excess of
fifty percent (50%) of the outstanding voting shares of the Company, or (ii)
that the directors of the Company as serving on its Board of Directors on the
date immediately preceding such event or transaction or series thereof shall, in
the aggregate, represent less than fifty percent (50%) of the Board of Directors
after such event or transaction or series thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first hereinabove written.
EMPLOYER:
▇▇▇▇▇▇▇▇.▇▇▇, INC., a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Title: Chief Executive Officer
EMPLOYEE:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
SCHEDULE A
SALARY :
DIVISION AVAILABLE CASH AND NON-CASH COMPENSATION:
The determination of Available Cash from Net Operating Income of the ATLANTA
Division of the Company (hereinafter called the "Division Available Cash") shall
be determined in accordance with the following business rules:
1. The calculation of Division Available Cash will be made by the Company on a
monthly basis not later than the 15th day of the each month for the preceding
calendar month.
2. Employee shall have the right, during reasonable business hours, to meet with
representatives of the Company concerning this calculation and shall have
reasonable access to books and records of the Company to validate the
calculations.
3. The formula for the calculation of the "ATLANTA Division Available Cash"
shall be the following:
+ ATLANTA DIVISION ATTRIBUTED CASH REVENUES
- DIVISIONAL PROFIT CARVE OUT
- ATLANTA DIVISION EXPENSES
- REASONABLE RESERVES
= ATLANTA DIVISION AVAILABLE CASH
Where,
"ATLANTA DIVISION ATTRIBUTED CASH REVENUES" means 100% of the
cash receipts during the month from fees, retainers or other
income streams plus 100% of the non-cash compensation
(INCLUDING, WITHOUT LIMITATION WARRANTS, STOCK OPTIONS AND
STOCK OR SECURITIES), attributable to ATLANTA Division work
(less referral fees, finders fees and fee sharing to third
parties or other divisions or affiliates of the Company).
"DIVISIONAL PROFIT CARVE OUT" shall mean 35% of the ATLANTA
Division Attributed Cash Revenues.
"ATLANTA DIVISION EXPENSES" shall mean direct and indirect
expenses reasonably allocated by the Company for the current
level of operations of the ATLANTA Division including, but not
limited to, salaries taxes, allocable rent, utilities, phone,
etc.
ANY EXPENSES RELATING TO ADVERTISING OR MARKETING EXPENSES OR
FUTURE EXPENSES ASSOCIATED WITH THE EXPANSION OF THE ATLANTA
DIVISION SHALL NOT BE INCLUDED AS A ATLANTA DIVISION EXPENSE
PROVIDED SUCH EXPENSES HAVE BEEN APPROVED IN ADVANCE BY THE
COMPANY AND THE COMPANY HAS AGREED TO PAY FOR SUCH EXPENSES.
IT IS AGREED THAT THE MONTHLY "INDIRECT" EXPENSES OF THE
COMPANY ALLOCABLE TO THE ATLANTA DIVISION SHALL NOT BE GREATER
THAN $500.00.
"REASONABLE RESERVES" shall mean, in the context of current
facts and circumstances, the appropriate reserve of not less
than two months based on recurring monthly expenses of the
ATLANTA Division for future contingencies and demands on cash
resources attributable to the operations of the ATLANTA
Division.
4. It is agreed that all salaries and bonuses for employees of the ATLANTA
Division will be paid from ATLANTA Division Available Cash if not approved in
advance by the Company and the Company has agreed to pay for such salaries and
bonuses. ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇' shall be deemed an ATLANTA Division Expense.
5. It is the intention of all parties that all distributions of ATLANTA Division
Available Cash shall be made on a cumulative basis such that periods of
operating loss for the Division, resulting in negative ATLANTA Division
Available Cash, are first offset in full against periods of positive ATLANTA
Division Available Cash.
6. ATLANTA Division Available Cash shall be allocated and paid to the employees
of the ATLANTA Division as determined by the mutual agreement of the Company and
Employee (or the principal executive officer of the ATLANTA Division in the
event Employee is not an employee of the ATLANTA Division).
SCHEDULE B
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT is entered into as of January 23, 2001 by
and between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("Optionee") and ▇▇▇▇▇▇▇▇.▇▇▇, INC., a Delaware
corporation (the "Corporation").
W I T N E S S E T H:
-------------------
WHEREAS, Optionee and the Corporation have concurrently herewith
entered into a certain Employment Agreement (the "Employment Agreement"); and
WHEREAS, the Corporation desires to grant to Optionee the option to
acquire shares of common stock, $.01 par value, of the Corporation (the "Common
Stock") upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants set forth herein and other good and valuable consideration, the
receipt of which is hereby acknowledged, Optionee and the Corporation hereby
agree as follows:
1. (a) GRANT OF THE OPTIONS. Subject to the terms and
conditions of this Agreement, the Corporation hereby grants to Optionee the
right to purchase (individually referred to as the "Option" or collectively
referred to as the "Options") from the Corporation 451,667 shares of the Common
Stock (the "Option Shares"), subject to the following vesting schedule, at the
per share purchase price equal to $.63, the closing price of the Corporation's
Common Stock on January 23, 2001:
Option Shares shall vest in 8 equal tranches on June
30th and December 31st of 2001, 2002, 2003 and 2004, respectively.
2. RIGHTS OF OPTIONEE. Optionee by virtue of holding the Options
to purchase the Option Shares shall not have any rights to any dividends to be
distributed by the Corporation to the shareholders or any other rights of a
shareholder in the Corporation with respect to any of the Option Shares until
Optionee exercises the Option to purchase the Option Shares pursuant to Section
5 of this Agreement.
3. TRANSFERABILITY OF THE OPTIONS. The Options may not be
assigned, transferred, or otherwise disposed of, or pledged or hypothecated or
in any way be subject to execution, attachment or other process. Any assignment,
transfer, pledge, hypothecation or other disposition of the Options attempted
contrary to the provisions of this Agreement or any levy, execution, attachment
or other process attempted upon the Options will be null and void and without
effect.
4. EXERCISE OF THE OPTIONS. The Option to purchase the Option
Shares shall be exercisable upon the terms and conditions hereinafter set forth:
Subject to the terms and conditions of this Agreement, the
Option to purchase the Option Shares shall be exercisable by Optionee upon
delivery of notice to the Corporation (the
"Exercise Notice") in accordance with the procedure prescribed in this Section
4. The Exercise Notice shall state that Optionee has elected to exercise the
Option or any portion thereof. The Option may be exercised by the Optionee, in
whole or in part, by the delivery of the Exercise Notice to the office of the
Corporation, and by payment to the Corporation of the Purchase Price in cash or
by wire transfer, for each share being purchased. Upon the exercise of the
Option, a certificate or certificates for the shares of Common Stock so
purchased, registered in the name of the holder, shall be promptly delivered to
the holder hereof within a reasonable time. The person in whose name any
certificate for shares of Common Stock is issued upon exercise of the Option
shall for all purposes be deemed to have become the holder of record of such
shares on the date on which the Exercise Notice was delivered and payment of the
Purchase Price was made, except that, if the date of such surrender and payment
is a date on which the stock transfer books of the Corporation are closed, such
person shall be deemed to have become the holder of such shares at the close of
business on the next succeeding date on which the stock transfer books are open.
5. ACCELERATED VESTING AND EXERCISE PERIOD.
a. DEATH OR DISABILITY. In the event of Optionee's death
or Disability while employed with the Corporation prior to Optionee's vesting or
exercise of all of the Options, then all of the Options shall become immediately
vested and exercisable. For purposes hereof, "Disability" shall mean Optionee's
failure to perform his employment duties with the Company for a continuous three
month period, or an aggregate of four months during any six month period, as a
result of ANY illness or accident, as verified by at least two U.S. licensed
medical doctors reasonably acceptable to the Company.
b. CESSATION OF EMPLOYMENT. Notwithstanding anything to
the contrary contained herein, in the event that Optionee ceases to be employed
by the Corporation for any reason other than Optionee's death, Disability or
termination by the Company without cause (as defined within the Employment
Agreement) (the date of Optionee's cessation of employment shall be referred to
as the "Cessation Date"), then all non-vested Options shall expire and be
forfeited on the Cessation Date. In the event that the Company terminates
Optionee's employment without cause, then all non-vested Options shall
immediately vest as of the Cessation Date.
c. CHANGE OF CONTROL. In the event of a "Change of
Control" or a sale of all or substantially all of the assets of the Corporation,
then all non-vested Options shall immediately vest. For purposes of this
Agreement, "Change of Control" shall mean (i) the occurrence of any event or
transaction or series thereof pursuant to which any person or group (as used in
Rule 13(d)-1 of the Securities Exchange Act of 1934) acquires beneficial
ownership or control in excess of 50% of the outstanding voting shares of the
Company, or (ii) that the directors of the Company serving on its Board of
Directors on the date immediately preceding such event or transaction or series
thereof shall, in the aggregate, represent less than fifty percent (50%) of the
Board of Directors after such event or transaction or series thereof.
6. RESERVATION OF SHARES. The Corporation covenants and agrees
that at all times that this Stock Option Agreement shall be in effect it shall
have authorized, and reserved, Common Stock of the Corporation sufficient for
the exercise of the Options and the purchase of Common Stock by Optionee.
7. SUBSTITUTION OF THIS AGREEMENT UPON ADOPTION OF QUALIFIED
STOCK OPTION PLAN. It is possible that the Corporation will, within twelve (12)
months from the date of this
Agreement, adopt a Qualified Stock Option Plan for members of its senior
executive management, including Optionee. In the event of such adoption, the
Corporation agrees upon written request from Optionee to amend this Agreement so
as to cancel all unvested option rights set forth herein, PROVIDED, HOWEVER that
the same economic terms (including numbers of share options, vesting periods and
price) remain the same with respect to Optionee, and are granted to Optionee,
pursuant to the terms of the adopted Qualified Stock Option Plan. All rights
existing as to vested Stock Options as set forth herein shall remain in effect
notwithstanding the adoption of a Qualified Stock Option Plan.
8. INVESTMENT. Optionee acknowledges that the Option Shares are
not being offered pursuant to a registration statement under the Securities Act
of 1933, as amended (the "Act"), or any other securities laws. Optionee
acknowledges that the Option Shares are being acquired for Optionee's own
account for investment purposes only and not with a view to, or for sale in
connection with, any public distribution thereof and will not sell, or offer to
sell or otherwise dispose, of any interest in the Option Shares acquired by
Optionee in violation of the Act. Optionee has had substantial experience in
business and financial matters and in making investments of the type
contemplated by this Agreement, is capable of evaluating the merits and risks of
the purchase of the Option Shares and is able to bear the economic risks of such
investment.
9. LIQUIDITY. Although there can be no assurance that the Option
Shares will be registered under the Act, that an exemption from such
registration will be available, or that there will be a market for the Option
Shares in the future, the Corporation agrees to use its best efforts to enable
and facilitate Optionee's sale or disposition of the Option Shares in compliance
with the Act at the earliest date reasonably practicable. Furthermore, Optionee
is hereby granted registration rights as described in Exhibit "A" attached
hereto and incorporated herein.
10. ADJUSTMENTS. In the event of a stock dividend, stock split,
share combination, recapitalization, merger, consolidation or reorganization of
or by the Corporation, the number or class of shares purchasable (and purchase
price per share) upon exercise of the Option immediately prior thereto shall be
adjusted so that Optionee shall be entitled to receive the kind and number of
shares or other securities which Optionee would have owned or have been entitled
to receive after the happening of any of the events described above, had the
Option been exercised immediately prior to the happening of any of such events
or any record date with respect thereto. Any adjustment made pursuant to this
Section shall become effective immediately after the effective date of such
events retroactive to the record date, if any, for such events. In the event
that any director, officer or employee of the Company shall hereafter be granted
options or warrants with antidilution provisions in addition to the foregoing
adjustment provision, then Optionee shall be deemed to have been granted the
same antidilution provisions with respect to the Options granted by this
Agreement. In the event of the grant of more than one such future antidilution
provisions, then Optionee shall be deemed to have been granted the most
favorable of such antidilution provisions thereof.
11. NOTICES. Any notice required or permitted hereunder shall be
deemed validly given if delivered by hand, verified overnight delivery, or by
first class, certified mail to the following address of Optionee (or to such
other address as Optionee may notify in writing to Corporation):
If to Optionee: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Company: ▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
12. BENEFITS OF AGREEMENT. This Agreement shall inure to the
benefit and shall be binding upon the successors, heirs, legal representatives
and permitted assigns of the parties hereto.
13. SEVERABILITY. In the event that any one or more provisions of
this Agreement shall be deemed to be illegal or unenforceable such illegality or
unenforceability shall not affect the validity and enforceability of the
remaining legal and enforceable provisions hereof, which shall be construed as
if such illegal or unenforceable provision or provisions had not been inserted.
14. GOVERNING LAW; VENUE. This Agreement will be covered and
construed under the laws of the State of Florida, without giving effect to rules
governing conflicts of law, with proper venue with respect to all disputes
related to this Agreement being Broward County, Florida.
15. COUNTERPARTS. This Agreement may be executed in two (2) or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
THE CORPORATION:
▇▇▇▇▇▇▇▇.▇▇▇, INC., a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Chief Executive Officer
OPTIONEE:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Printed Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
EXHIBIT "A"
REGISTRATION RIGHTS
Capitalized terms used but not defined herein shall have the respective meanings
ascribed to such terms in the Employment Agreement to which this Exhibit A is
attached.
PIGGY-BACK REGISTRATION RIGHTS. If at any time commencing after January 23, 2001
until the expiration of the Option (the "Registration Period"), ▇▇▇▇▇▇▇▇.▇▇▇,
Inc. (the "Company") proposes to register any of securities under the Securities
Act (other than registration of a stock option, stock purchase or compensation
or incentive plan or of stock issued or issuable pursuant to any such plan, or
dividend investment plan, a registration of stock proposed to be issued in
exchange for securities or assets of, or in connection with the merger or
consolidation with, another person or entity , or a registration of stock
proposed to be issued in exchange for securities of such other person or
entity), the Company shall give prompt written notice thereof to the Holder and,
upon the written request made within ten (10) days after the Holder and, upon
receipt of such notice, the Company shall use its best efforts to effect as part
of such registration the registration under the Securities Act of that number of
the Option shares ("Option Shares") which the Holder requests the Company to
register, provided that if the registration relates to a firm commitment,
underwritten public offering, the managing underwriter of the Company's public
offering, if any, shall be of the opinion that the inclusion in such
registration of such number of Option Shares will not interfere with the
successful marketing of all of the Company's securities being registered. If the
managing underwriter, if any, reasonably requests the Holder to reduce in whole
or in part the number of Option Shares sought or be registered by the Holder,
the Holder shall comply with the request of the managing underwriter. In any
underwritten offering, the Holder shall sell the Option Shares registered as
part of such underwritten offering to the underwriters of such offering on the
same terms and conditions as apply to the Company. In connection with any
registration pursuant to this Section (a), the Holder shall provide the Company
with such information regarding the Holder and the distribution of the Option
Shares as the Company and the managing underwriter shall reasonably request for
use in the registration statement relating to such offering. The Company shall
pay all costs and expenses of the Holder. The Company shall not be obliged to
effect registration under the Securities Act pursuant to this Section (a) on
more than one occasion; PROVIDED, HOWEVER, that this limitation shall not apply
if the number of shares requested to be registered by the Holder shall have been
reduced pursuant to the second sentence of this Section (a) unless and until the
occurrence of an occasion on which the shares requested by the Holder to be
registered have not been so reduced.
