EXHIBIT 10.1
▇▇▇▇▇▇▇▇.▇▇▇
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT is made this 20th day of September
2002, (this "Agreement") between ▇▇▇▇▇▇▇▇.▇▇▇ ("▇▇▇▇▇▇▇▇.▇▇▇" or the "Company"),
a Nevada corporation, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ ("Executive").
RECITALS
A. Executive is currently employed by ▇▇▇▇▇▇▇▇.▇▇▇ as its Chief
Executive Officer and President on the terms and conditions stated in an
Employment Agreement between ▇▇▇▇▇▇▇▇.▇▇▇ and Executive, dated March 16, 2001
(the "Original Employment Agreement").
B. The Company wishes to continue to employ Executive on the terms and
conditions set forth in this Amended and Restated Employment Agreement.
STATEMENT OF AGREEMENT
In consideration of the foregoing, and of Executive's employment, the
parties agree as follows:
1. Employment. The Original Employment Agreement is hereby terminated
and Executive's employment with ▇▇▇▇▇▇▇▇.▇▇▇ shall be upon the terms and
conditions hereinafter set forth to become effective upon execution of this
Agreement (the "Effective Time").
2. Duties.
(a) Executive shall be employed: (i) as the Chief Executive
Officer and President of the Company, subject to the authority and discretion of
the Board of Directors, and (ii) to perform such other or additional duties and
responsibilities consistent with Executive's title(s), status, and position as
the Board of Directors of ▇▇▇▇▇▇▇▇.▇▇▇ may, from time to time, prescribe.
(b) So long as employed under this Agreement, Executive agrees
to competently, diligently and effectively discharge all duties of Executive
hereunder. Executive shall not be prohibited from engaging in such business,
charitable, or other activities, including serving as a director or consultant
to other businesses, which activities do not violate the other provisions of
this Agreement and the Confidentiality, Non-Competition and Assignment
Agreement, dated March 16, 2001, between the Company and the Executive.
(c) The Executive shall be based out of the Company's Ft.
▇▇▇▇▇, Florida office. If the Company decides to terminate operations in the
Fort ▇▇▇▇▇, Florida area,
Executive shall not be required to relocate and, to the extent the Executive
cannot perform his duties hereunder from his home in Fort ▇▇▇▇▇, his
non-performance will not constitute Cause (as defined below).
3. Compensation. As full compensation for all services rendered to the
Company pursuant to this Agreement, in whatever capacity rendered, the Company
shall pay to Executive during the term hereof a minimum base salary at the rate
of $282,500 per year (the "Basic Salary"), payable in accordance with the usual
payroll practices of the Company. The Basic Salary thereafter may be increased,
but not decreased, from time to time, by the Board of Directors in connection
with reviews of Executive's performance occurring no less frequently than
annually. Executive will be entitled to receive incentive compensation pursuant
to the terms of plans adopted by the Board of Directors or its Compensation
Committee from time to time. The Board of Directors or its Compensation
Committee, as applicable, shall review Executive's performance on an annual
basis. In connection with such annual review, the Executive may be entitled to
receive additional stock option grants. Such options will be granted, if at all,
in the sole discretion of the Board of Directors or its Compensation Committee
on terms and conditions they determine. Notwithstanding the foregoing, (i) if
the Executive's employment with the Company is terminated by the Company without
Cause (as defined below) or by Executive for Good Reason (as defined below), or
(ii) there is a Change in Control of the Company (as defined below), any stock
options granted to Executive after the Effective Date shall immediately fully
vest and remain exercisable during the term as if the Executive were still
employed by the Company.
4. Business Expenses. The Company shall promptly pay directly, or
reimburse Executive for, all business expenses to the extent such expenses are
paid or incurred by Executive during the term of employment in accordance with
Company policy in effect from time to time and to the extent such expenses are
reasonable and necessary to the conduct by Executive of the Company's business
and properly substantiated.
5. Benefits. During the term of this Agreement and Executive's
employment hereunder, the Company shall provide to Executive such insurance,
vacation, sick leave and other like benefits as are provided to other executive
officers of the Company from time to time. Executive will use his reasonable
best efforts to schedule vacation periods to minimize disruption of the
Company's business.
6. Term; Termination.
(a) The Company shall employ the Executive, and the Executive
accepts such employment, for an initial term commencing on the date of this
Agreement and ending on the first anniversary of the date of this Agreement.
Thereafter, this Agreement shall be extended automatically for additional
twelve-month periods, unless terminated as described herein. Executive's
employment may be terminated at any time as provided in this Section 6. For
purposes of this Section 6, "Termination Date" shall mean the date on which any
notice period required under this Section 6 expires or, if no notice period is
specified in this Section 6, the effective date of the termination referenced in
the notice.
(b) The Company may terminate Executive's employment without
Cause (as
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defined below) upon giving 30 days' advance written notice to Executive. If
Executive's employment is terminated without Cause under this Section 6(b), the
Executive shall be entitled to receive (A) the earned but unpaid portion of
Executive's Basic Salary and pro rata portion of Executive's bonus, if any,
through the Termination Date; (B) over a period of twelve (12) months after such
termination (the "Severance Period") an amount equal to two (2) times the sum of
his (i) Basic Salary at the time of Termination, plus (ii) the Termination Bonus
(as defined below); (C) any other amounts or benefits owing to Executive under
the then applicable employee benefit, long term incentive or equity plans and
programs of the Company, which shall be paid or treated in accordance with
Section 3 hereof and otherwise in accordance with the terms of such plans and
programs; and (D) benefits, (including, without limitation health, life,
disability and pension) as if Executive were an employee during the Severance
Period.
(c) The Company may terminate Executive's employment upon a
determination by the Company that "Cause" exists for Executive's termination and
the Company serves written notice of such termination upon Executive. As used in
this Agreement, the term Cause shall refer only to any one or more of the
following grounds:
(i) commission of a material and substantive act of
theft, including, but not limited to, misappropriation of funds or any
property of the Company;
(ii) intentional engagement in activities or conduct
clearly injurious to the best interests or reputation of the Company
which in fact result in material and substantial injury to the Company;
(iii) refusal to perform his assigned duties and
responsibilities (so long as the Company does not assign any duties or
responsibilities which would give the Executive Good Reason to
terminate his employment as described in Section 6(e)) after receipt by
Executive of written detailed notice and reasonable opportunity to
cure;
(iv) gross insubordination by Executive, which shall
consist only of a willful refusal to comply with a lawful written
directive to Executive issued pursuant to a duly authorized resolution
adopted by the Board of Directors (so long as the directive does not
give the Executive Good Reason to terminate his employment as described
in Section 6(e));
(v) the clear violation of any of the material terms
and conditions of this Agreement or any written agreement or agreements
Executive may from time to time have with the Company (following 30
days' written notice from the Company specifying the violation and
Executive's failure to cure such violation within such 30 day period);
(vi) Executive's substantial dependence, as
determined by the Board of Directors of the Company, on alcohol or any
narcotic drug or other controlled or illegal substance which materially
and substantially prevents Executive from performing his duties
hereunder; or
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(vii) the final and unappealable conviction of
Executive of a crime which is a felony or a misdemeanor involving an
act of moral turpitude, or a misdemeanor committed in connection with
his employment by the Company, which causes the Company a substantial
detriment.
In the event of a termination under this Section 6(c), the Company will pay
Executive the earned but unpaid portion of Executive's Basic Salary through the
Termination Date. If any determination of substantial dependence under Section
6(c)(vi) is disputed by the Executive, the parties hereto agree to abide by the
decision of a panel of three physicians appointed in the manner as specified in
Section 6(d) of this Agreement. If any determination of "Cause" is made under
items 6(c), (i), (ii), (iii), (iv), (v), or (vii) which Executive contests,
Executive shall have the opportunity, within 30 days of such determination, to
personally appear in front of the Board of Directors and present his case to the
Board of Directors and have the Board of Directors reconsider the determination
of Cause.
(d) Executive's employment shall terminate upon the death or
permanent disability of Executive. For purposes hereof, "permanent disability,"
shall mean the inability of the Executive, as determined by the Board of
Directors of ▇▇▇▇▇▇▇▇.▇▇▇, by reason of physical or mental illness to perform
the duties required of him under this Agreement for more than 120 days in any
360 day period. Upon a determination by the Board of Directors of ▇▇▇▇▇▇▇▇.▇▇▇
that Executive's employment shall be terminated under this Section 6(d), the
Board of Directors shall give Executive 30 days' prior written notice of the
termination. If Executive disputes a determination of the Board of Directors
under this Section 6(d), the parties agree to abide by the decision of a panel
of three physicians. ▇▇▇▇▇▇▇▇.▇▇▇ will select a physician, Executive will select
a physician and the physicians selected by ▇▇▇▇▇▇▇▇.▇▇▇ and Executive will
select a third physician. Executive agrees to make himself available for and
submit to examinations by such physicians as may be directed by the Company.
Failure to submit to any examination shall constitute a breach of a material
part of this Agreement. In the event of termination due to death or permanent
disability, the Company will pay Executive, or his legal representative, the
earned but unpaid portion of Executive's Basic Salary through the Termination
Date and the earned but unpaid portion of any vested incentive compensation
under and consistent with plans adopted by the Company prior to the Termination
Date.
(e) The Executive may terminate his employment for Good Reason
(as defined below) upon giving 30 days advance written notice to the Company. If
Executive's employment is terminated with Good Reason under this Section 6(e),
the Executive shall be entitled to receive (A) the earned but unpaid portion of
Executive's Basic Salary and pro rata portion of Executive's bonus, if any,
through the Termination Date; (B) over a period of twelve (12) months after such
termination an amount equal to two (2) times the sum of his (i) Basic Salary at
the time of Termination, plus (ii) the Termination Bonus (as defined below),
provided, however, in the event of termination pursuant to item (iv) below
(termination by Executive during the Window Period), the payment set forth in
this item (B) shall be calculated and paid as follows: over a period of twelve
(12) months after such termination an amount equal to one (1) times the sum of
his (i) Basic Salary at the time of Termination, plus (ii) the Termination
Bonus; (C) any other amounts or benefits owing to Executive under the then
applicable employee benefit, long term incentive or equity plans and programs of
the Company, which shall be paid or
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treated in accordance with Section 3 hereof and otherwise in accordance with the
terms of such plans and programs; and (D) benefits, (including, without
limitation health, life, disability and pension) as if Executive were an
employee during the Severance Period. As used in this Agreement, the term "Good
Reason" means:
(i) a change in Executive's title(s), status, position or
responsibilities without Executive's written consent,
which does not represent a promotion from his
existing status, position or responsibilities,
despite Executive's written notice to the Company of
his objection to such change and the Company's
failure to address such notice in a reasonable
fashion within 30 days of such notice, provided,
however, the Company's naming a new President shall
not constitute Good Reason for this subparagraph (i);
(ii) the assignment to Executive of any duties or
responsibilities which are inconsistent with his
status, position or responsibilities as set forth in
Section 2 hereof, despite Executive's written notice
to the Company of his objection to such change and
the Company's failure to address such notice in a
reasonable fashion within 30 days of such notice;
(iii) if there is a reduction in Executive's Basic Salary;
(iv) during the "Window Period" (as defined below) if
there is a Change in Control of the Company (as
defined below);
(v) a breach by the Company of any material term or
provision of this Agreement; or
(vi) a relocation of the Company's offices in Fort ▇▇▇▇▇,
Florida to a location more than 35 miles from the
current location.
(f) The Executive may terminate his employment for any reason
(other than Good Reason) upon giving 30 days' advance written notice to the
Company. If Executive's employment is so terminated under this Section 6(f), the
Company will pay Executive the earned but unpaid portion of Executive's Basic
Salary through the Termination Date and the earned but unpaid portion of any
vested incentive compensation under and consistent with plans adopted by the
Company prior to the Termination Date.
(g) In the event of the Executive's death during the Severance
Period, payments of Basic Salary under this paragraph 6 and payments under the
Company's employee benefit plan(s) shall continue to be made in accordance with
their terms during the remainder of the Severance Period to the beneficiary
designated in writing for such purpose by the Executive or, if no such
beneficiary is specifically designated, to the Executive's estate.
(h) As used in this Agreement, the term "Bonus" shall mean any
bonus, incentive compensation or any other cash benefit paid or payable to the
Executive under any incentive compensation grant or plan, excluding signing
bonuses and the Company's stock option plan. For purposes of this Agreement, the
Executive's "Termination Bonus" shall be equal to the amount of the Executive's
Bonus for the four (4) fiscal quarters immediately preceding the Termination
Date, provided, however, if there has been a Change in Control of the Company
the
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Termination Bonus shall be an amount equal to the greater of (i) the preceding
calculation or (ii) Executive's Bonus for the four (4) fiscal quarters
immediately preceding the Change in Control of the Company.
(i) As used in this Agreement, the term "Window Period" shall
mean the period of time after a Change in Control in which Executive can
terminate his employment with the Company for any reason and the termination
shall be deemed a termination for Good Reason for purposes of this Agreement.
The Window Period begins on the 180-day anniversary date of a Change in Control
and lasts for thirty (30) days.
(j) As used in this Agreement, the term "Change in Control"
shall mean the occurrence of any one of the following events:
(i) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company representing thirty-five
percent (35%) or more, excluding in the calculation of Beneficial Ownership
securities acquired directly from the Company, of the combined voting power of
the Company's then outstanding voting securities;
(ii) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company representing fifty-one
percent (51%) or more of the combined voting power of the Company's then
outstanding voting securities;
(iii) the following individuals cease for any reason
to constitute a majority of the number of directors then serving: individuals
who, on the Effective Date, constitute the Board and any new director (other
than a director whose initial assumption of office is in connection with an
actual or threatened election contest, including but not limited to a consent
solicitation, relating to the election of directors of the Company) whose
appointment or election by the Board or nomination for election by the Company's
stockholders was approved or recommended by a vote of the at least two-thirds
(2/3) of the directors then still in office who either were directors on the
Effective Date or whose appointment, election or nomination for election was
previously so approved or recommended;
(iv) there is a consummated merger or consolidation
of the Company or any direct or indirect subsidiary of the Company with any
other corporation, other than (A) a merger or consolidation which would result
in the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving or parent entity) more than fifty
percent (50%) of the combined voting power of the voting securities of the
Company or such surviving or parent equity outstanding immediately after such
merger or consolidation or (B) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no Person,
directly or indirectly, acquired twenty-five percent (25%) or more of the
combined voting power of the Company's then outstanding securities (not
including in the securities beneficially owned by such person any securities
acquired directly from the Company or its Affiliates); or
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(v) the stock holders of the Company approve a plan
of complete liquidation of the Company or there is consummated on agreement for
the sale or disposition by the Company of all or substantially all of the
Company's assets (or any transaction having a similar effect), other than a sale
or disposition by the Company of all or substantially all of the Company's
assets to an entity, at least fifty percent (50%) of the combined voting power
of the voting securities of which are owned by stockholders of the Company in
substantially the same proportions as their ownership of the Company immediately
prior to such sale.
For purposes of this Section 6, the following terms shall have the following
meanings:
(i) "Affiliate" shall mean an affiliate of the
Company, as defined in Rule 12b-2 promulgated under Section 12 of the Securities
Exchange Act of 1934, as amended from time to time (the "Exchange Act");
(ii) "Beneficial Owner" shall have the meaning set
forth in Rule 13d-3 under the Exchange Act;
(iii) "Person" shall have the meaning set forth in
Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and
14(d) thereof, except that such term shall not include (1) the Company, (2) a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company, (3) an underwriter temporarily holding securities pursuant to an
offering of such securities or (4) a corporation owned, directly or indirectly,
by the stockholders of the Company in substantially the same proportions as
their ownership of shares of Common Stock of the Company.
7. Indemnity.
(a) Subject only to the exclusions set forth in Section 7(b)
hereof, the Company hereby agrees to hold harmless and indemnify Executive
against any and all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by Executive in
connection with any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (excluding an action by
or in the right of the Company) to which Executive is, was or at any time
becomes a party, or is threatened to be made a party, by reason of the fact that
Executive is, was or at any time becomes a director, officer, employee or agent
of the Company, or is or was serving or at any time serves at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise.
(b) The Company hereof shall not indemnify Executive pursuant
to Section 7(a):
(i) except to the extent the aggregate losses to be
indemnified hereunder exceed the amount of such losses for which
Executive is indemnified pursuant to any directors and officers
liability insurance purchased and maintained by the Company;
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(ii) in respect to remuneration paid to Executive if
it shall be determined by a final judgment or other final adjudication
that such remuneration was in violation of law;
(iii) on account of any suit in which judgment is
rendered against Executive for an accounting of profits made from the
purchase or sale by Executive of securities of the Company pursuant to
the provisions of Section 16(b) of the Securities Exchange Act of 1934
and amendments thereto or similar provisions of any federal, state or
local statutory law;
(iv) on account of Executive's material breach of any
provision of this Agreement;
(v) on account of Executive's act or omission being
finally adjudged to involve intentional misconduct, a knowing violation
of law, or grossly negligent conduct; or
(vi) if a final decision by a Court having
jurisdiction in the matter shall determine that such indemnification is
not lawful.
(c) All agreements and obligations of the Company contained
herein shall continue during the period Executive is a director, officer,
employee or agent of the Company (or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) and shall continue
thereafter so long as Executive shall be subject to any possible claim or
threatened, pending or completed action, suit or proceeding, whether civil,
criminal or investigative, by reason of the fact that Executive was an officer
or director of the Company or serving in any other capacity referred to herein.
(d) Promptly after receipt by Executive of notice of the
commencement of any action, suit or proceeding, Executive will, if a claim in
respect thereof is to be made against the Company under this Section 7, notify
the Company of the commencement thereof; but the omission so to notify the
Company will not relieve it from any liability which it may have to Executive
otherwise than under this Section 7. With respect to any such action, suit or
proceeding as to which Executive notifies the Company under this Section 7(d):
(i) The Company will be entitled to participate
therein at its own expense.
(ii) Except as otherwise provided below, to the
extent that it may wish, the Company jointly with any other
indemnifying party similarly notified will be entitled to assume the
defense thereof, with counsel selected by the Company. After notice
from the Company to Executive of its election so to assume the defense
thereof, the Company will not be liable to Executive under this Section
7 for any legal or other expenses subsequently incurred by Executive in
connection with the defense thereof other than
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reasonable costs of investigation or as otherwise provided below.
Executive shall have the right to employ his counsel in such action,
suit or proceeding but the fees and expenses of such counsel incurred
after notice from the Company of its assumption of the defense thereof
shall be at the expense of Executive, unless (A) the employment of
counsel by Executive has been authorized by the Company, or (B) the
Company shall not in fact have employed counsel to assume the defense
of such action, in each of which cases the fees and expenses of counsel
shall be at the expense of the Company. The Company shall not be
entitled to assume the defense of any action, suit or proceeding
brought by or on behalf of the Company.
(iii) The Company shall not be liable to indemnify
Executive under this Agreement for any amounts paid in settlement of
any action or claim effected without its written consent. The Company
shall not settle in any manner that would impose any penalty or
limitation on Executive without Executive's written consent. Neither
the Company nor Executive will unreasonably withhold their consent to
any proposed settlement.
(e) Executive agrees that Executive will reimburse the Company
for all customary and reasonable expenses paid by the Company in defending any
civil or criminal action, suit or proceeding against Executive in the event and
only to the extent that it shall be ultimately determined that Executive is not
entitled to be indemnified by the Company for such expenses under the provisions
of Nevada law (or the laws of the Company's state of incorporation at the time),
federal securities laws, the Company's By-laws or this Agreement.
8. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment, award,
benefit or distribution (or any acceleration of any payment, award, benefit or
distribution) by the Company (or any of its affiliated entities) or any entity
which effectuates a Change in Control (or any of its affiliated entities) to or
for the benefit of Executive (whether pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional payments required
under this Section 8) (the "Payments") would be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code"), or any interest or penalties are incurred by Executive with respect to
such excise tax (such excise tax, together with any such interest and penalties,
are hereinafter collectively referred to as the "Excise Tax"), then the Company
shall pay to Executive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by Executive of all taxes (including any Excise Tax)
imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up
Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y)
the product of any deductions disallowed because of the inclusion of the
Gross-up Payment in Executive's adjusted gross income and the highest applicable
marginal rate of federal income taxation for the calendar year in which the
Gross-up Payment is to be made. For purposes of determining the amount of the
Gross-up Payment, the Executive shall be deemed to (i) pay federal income taxes
at the highest marginal rates of federal income taxation for the calendar year
in which the Gross-up Payment is to be made, and (ii) pay applicable state and
local income taxes at the highest marginal rate of taxation for the calendar
year in which the
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Gross-up Payment is to be made, net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and local taxes.
Notwithstanding the foregoing provisions of this Section 8(a), if it shall be
determined that Executive is entitled to a Gross-Up Payment, but that the
Payments would not be subject to the Excise Tax if the Payments were reduced by
an amount that is less than 5% of the portion of the Payments that would be
treated as "parachute payments" under Section 280G of the Code, then the amounts
payable to Executive under this Agreement shall be reduced (but not below zero)
to the maximum amount that could be paid to Executive without giving rise to the
Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be made to
Executive. The reduction of the amounts payable hereunder, if applicable, shall
be made by reducing first the payments under Section 8, unless an alternative
method of reduction is elected by Executive. For purposes of reducing the
Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and
no other Payments) shall be reduced.
If the reduction of the amounts payable hereunder would not
result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable
under this Agreement shall be reduced pursuant to this provision.
(b) Subject to the provisions of Section 8(a), all
determinations required to be made under this Section 8(b), including whether
and when a Gross-Up Payment is required, the amount of such Gross-Up Payment,
the reduction of the Payments to the Safe Harbor Cap and the assumptions to be
utilized in arriving at such determinations, shall be made by the public
accounting firm that is retained by the Company as of the date immediately prior
to the Change in Control (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and Executive within fifteen (15)
business days of the receipt of notice from the Company or the Executive that
there has been a Payment, or such earlier time as is requested by the Company
(collectively, the "Determination"). In the event that the Accounting Firm is
serving as accountant or auditor for the individual, entity or group effecting
the Change in Control, Executive may appoint another nationally recognized
public accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm hereunder). All
fees and expenses of the Accounting Firm shall be borne solely by the Company
and the Company shall enter into any agreement requested by the Accounting Firm
in connection with the performance of the services hereunder. The Gross-up
Payment under this Section 8 with respect to any Payments shall be made no later
than thirty (30) days following such Payment. If the Accounting Firm determines
that no Excise Tax is payable by Executive, it shall furnish Executive with a
written opinion to such effect, and to the effect that failure to report the
Excise Tax, if any, on Executive's applicable federal income tax return will not
result in the imposition of a negligence or similar penalty. In the event the
Accounting Firm determines that the Payments shall be reduced to the Safe Harbor
Cap, it shall furnish Executive with a written opinion to such effect. The
Determination by the Accounting Firm shall be binding upon the Company and
Executive. As a result of the uncertainty in the application of Section 4999 of
the Code at the time of the Determination, it is possible that Gross-up Payments
which will not have been made by the Company should have been made
("Underpayment") or Gross-up Payments are made by the Company which should not
have been made ("Overpayment"), consistent with the calculations required to be
made hereunder. In the event that the Executive thereafter is required to make
payment of any Excise Tax or additional Excise Tax, the
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Accounting Firm shall determine the amount of the Underpayment that has occurred
and any such Underpayment (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code) shall be promptly paid by the Company to or
for the benefit of Executive. In the event the amount of the Gross-up Payment
exceeds the amount necessary to reimburse the Executive for his Excise Tax, the
Accounting Firm shall determine the amount of the Overpayment that has been made
and any such Overpayment (together with interest at the rate provided in Section
1274(b)(2) of the Code) shall be promptly paid by Executive (to the extent he
has received a refund if the applicable Excise Tax has been paid to the Internal
Revenue Service) to or for the benefit of the Company. Executive shall
cooperate, to the extent his expenses are reimbursed by the Company, with any
reasonable requests by the Company in connection with any contests or disputes
with the Internal Revenue Service in connection with the Excise Tax.
9. Assignment. This Agreement is personal to Executive and Executive
may not assign or delegate any of his rights or obligations hereunder. Subject
to the foregoing, this Agreement shall be binding upon and inure to the benefit
of the respective parties hereto, their heirs, executors, administrators,
successors and assigns.
10. Waiver. The waiver by either party hereto of any breach or
violation of any provision of this Agreement by the other party shall not
operate as or be construed to be a waiver of any subsequent breach by such
waiving party.
11. Notices. Any and all notices required or permitted to be given
under this Agreement will be sufficient and deemed effective three (3) days
following deposit in the United States mail if furnished in writing and sent by
certified mail to Executive at:
▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
and to the Company at:
▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Operating Officer
with a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Porter, Wright, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇ ▇. ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or such subsequent addresses as one party may designate in writing to the other
parties.
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12. Governing Law. This Agreement shall be interpreted, construed and
governed according to the laws of the State of Florida.
13. Amendment. This Agreement may be amended in any and every respect
only by agreement in writing executed by both parties hereto.
14. Section Headings. Section headings contained in this Agreement are
for convenience only and shall not be considered in construing any provision
hereof.
15. Entire Agreement. With the exception of the Confidentiality,
Assignment and Noncompetition Agreement, dated March 16, 2001, and any stock
option agreements between Executive and the Company, this Agreement terminates,
cancels and supersedes all previous employment or other agreements relating to
the employment of Executive with the Company or any predecessor, written or
oral, and this Agreement contains the entire understanding of the parties with
respect to the subject matter of this Agreement. This Agreement was fully
reviewed and negotiated on behalf of each party and shall not be construed
against the interest of either party as the drafter of this Agreement. EMPLOYEE
ACKNOWLEDGES THAT, BEFORE SIGNING THIS AGREEMENT, HE HAS READ THE ENTIRE
AGREEMENT AND HAS THIS DAY RECEIVED A COPY HEREOF.
16. Severability. The invalidity or unenforceability of any one or more
provisions of this Agreement shall not affect the validity or enforceability of
any other provisions of this Agreement or parts thereof.
17. Survival. The last sentence of Section 3, Sections 6, 7 and 8 of
this Agreement and this Section 17 shall survive any termination or expiration
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EXECUTIVE:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇.▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: COO & CFO
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