1
EXHIBIT NUMBER 10.26
[▇▇▇▇▇(SM) LOGO]
----------------
Real People, Real Solutions.
EMPLOYMENT AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT DESCRIBES THE BASIC LEGAL
AND ETHICAL RESPONSIBILITIES THAT YOU ARE REQUIRED TO OBSERVE AS AN EXECUTIVE
EXPOSED TO HIGHLY SENSITIVE TECHNOLOGY AND STRATEGIC INFORMATION. CONSULT WITH
YOUR LEGAL COUNSEL IF ALL THE TERMS AND PROVISIONS OF THIS AGREEMENT ARE NOT
FULLY UNDERSTOOD BY YOU.
THIS AGREEMENT is made as of the 31st day of July, 2000, by and between
▇▇▇▇▇ ENTERPRISES, INCORPORATED, a Florida corporation (the "Company"), and
▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Executive").
W I T N E S S E T H :
WHEREAS, the Company desires to assure itself of the Executive's
continued employment in an executive capacity; and
WHEREAS, the Executive desires to be employed by the Company on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
covenant and agree as follows:
1. EMPLOYMENT AND DUTIES. Subject to the terms and conditions of this
Agreement, the Company shall employ the Executive during the Term (as
hereinafter defined) in such management capacities as may be assigned from time
to time by the Company. The Executive accepts such employment and agrees to
devote his best efforts and entire business time, skill, labor, and attention to
the performance of such duties. The Executive agrees to promptly provide a
description of any other commercial duties or pursuits engaged in by the
Executive to the Company's Board of Directors. If the Board of Directors
determines in good faith that such activities conflict with the Executive's
performance of his duties hereunder, the Executive shall promptly cease such
activities to the extent as directed by the Board of Directors. It is
acknowledged and agreed that such description shall be made regarding any such
activities in which the Executive owns more than 5% of the ownership of the
organization or which may be in violation of Section 5 hereof, and that the
failure of the Executive to provide any such description shall enable the
Company to terminate the Executive for Cause (as provided in Section 6(c)
hereof). The Company agrees to hold any such information provided by the
Executive confidential and not disclose the same to any person other than a
person to whom disclosure is reasonably necessary or appropriate in light of the
circumstances. In addition, the Executive agrees to serve without additional
compensation if elected or appointed to any office or position, including as a
director, of the Company or any subsidiary or affiliate of the Company;
provided, however, that the Executive shall be entitled to receive such benefits
and additional compensation, if any, that is paid to executive officers of the
Company in connection with such service.
2. TERM. Subject to the terms and conditions of this Agreement,
including, but not limited to, the provisions for termination set forth in
Section 6 hereof, the employment of the Executive under this Agreement shall
commence on the effective date hereof and shall continue through and including
the close of business on the date hereof as set forth on Exhibit A attached
hereto and incorporated herein (such term shall
2
herein be defined as the "Term"). The Executive agrees that some portions of
this Agreement, including Sections 4, 5, and 6 hereof, will remain in force
after the termination of this Agreement.
3. COMPENSATION.
(a) Base Salary and Bonus. As compensation for the Executive's
services under this Agreement, the Executive shall receive and the Company shall
pay a weekly base salary set forth on Exhibit A. Such base salary may be
increased but not decreased during the Term in the Company's discretion based
upon the Executive's performance and any other factors the Company deems
relevant. Such base salary shall be payable in accordance with the policy then
prevailing for the Company's executives. In addition to such base salary, the
Executive shall be entitled during the Term to a performance bonus set forth on
Exhibit A and to participate in and receive payments from, at the Company's
election, other bonus and other incentive compensation plans, if any, as may be
adopted by the Company.
(b) Payments. All amounts paid pursuant to this Agreement shall be
subject to withholding or deduction by reason of the Federal Insurance
Contribution Act, federal income tax, state and local income tax, if any, and
comparable laws and regulations.
(c) Other Benefits. The Executive shall be reimbursed by the Company
for all reasonable and customary travel and other business expenses incurred by
the Executive in the performance of the Executive's duties hereunder in
accordance with the Company's standard policy regarding expense verification
practices. The Executive shall be entitled to that number of weeks paid vacation
per year that is available to other executive officers of the Company in
accordance with the Company's standard policy regarding vacations and such other
fringe benefits as may be set forth on Exhibit A and shall be eligible to
participate in such pension, life insurance, health insurance, disability
insurance, and other executive benefits plans, if any, which the Company may
from time to time make available to its executive officers generally.
4. CONFIDENTIAL INFORMATION.
(a) The Executive has acquired and will acquire information and
knowledge respecting the intimate and confidential affairs of the Company,
including, without limitation, confidential information with respect to the
Company's technical data, research and development projects, methods, products,
software, financial data, business plans, financial plans, customer lists,
business methodology, processes, production methods and techniques, promotional
materials and information, and other similar matters treated by the Company as
confidential (the "Confidential Information"). Accordingly, the Executive
covenants and agrees that during the Executive's employment by the Company
(whether during the Term hereof or otherwise) and thereafter, the Executive
shall not, without the prior written consent of the Company, disclose to any
person, other than a person to whom disclosure is reasonably necessary or
appropriate in connection with the performance by the Executive of the
Executive's duties hereunder, any Confidential Information obtained by the
Executive while in the employ of the Company.
(b) The Executive agrees that all memoranda; notes; records; papers
or other documents; computer disks; computer, video or audio tapes; CD-ROMs; all
other media and all copies thereof relating to the Company's operations or
business, some of which may be prepared by the Executive; and all objects
associated therewith in any way obtained by the Executive shall be the Company's
property. This shall include, but is not limited to, documents; computer disks;
computer, video and audio tapes; CD-ROMs; all other media and objects concerning
any technical data, methods, products, software, research and development
projects, financial data, financial plans, business plans, customer lists,
contracts, price lists, manuals, mailing lists, advertising materials; and all
other materials and records of any kind that may be in the Executive's
possession or under the Executive's control. The Executive shall not, except for
the Company's use, copy or duplicate any of the aforementioned documents or
objects, nor remove them from
2
3
the Company's facilities, nor use any information concerning them except for the
Company's benefit, either during the Executive's employment or thereafter. The
Executive covenants and agrees that the Executive will deliver all of the
aforementioned documents and objects, if any, that may be in the Executive's
possession to the Company upon termination of the Executive's employment, or at
any other time at the Company's request.
(c) In any action to enforce or challenge these Confidential
Information provisions, the prevailing party is entitled to recover its
attorney's fees and costs.
5. COVENANT NOT-TO-COMPETE AND NO SOLICITATION. Executive recognizes
that the Company is in the business of employing individuals to provide
specialized and technical services to the Company's Clients. The purpose of
these Covenant Not-to-Compete and No Solicitation provisions are to protect the
relationship which exists between the Company and its Client while Executive is
employed and after Executive leaves the employ of the Company. The consideration
for these Covenant Not-to-Compete and No Solicitation provisions is the
Executive's employment with the Company.
(a) Executive acknowledges the following:
(1) The Company expended considerable resources in obtaining
contracts with its Clients;
(2) The Company expended considerable resources to recruit and
hire employees who could perform services for its Clients;
(3) Through his/her employ with the Company, Executive will
develop a substantial relationship with the Company's existing or
potential Clients, including, but not limited to, being the sole or
primary contact between the Client and the Company;
(4) Executive will be exposed to valuable confidential business
information about the Company, its Clients, and the Company's
relationship with its Client;
(5) By providing services on behalf of the Company, Executive
will develop and enhance the valuable business relationship between
the Company and its Client;
(6) The relationship between the Company and its Clients depends
on the quality and quantity of the services Executive performs;
(7) Through employment with the Company, Executive will increase
his/her opportunity to work directly for the Clients or for a
competitor of the Company; and
(8) The Company will suffer irreparable harm if Executive
breaches these Covenant Not-to-Compete and No Solicitation
provisions of this Agreement.
(b) Executive agrees that:
(1) The relationship between the Company and its Client
(developed and enhanced when the Executive performs services on
behalf of the Company) is a legitimate business interest for the
Company to protect;
(2) The Company's legitimate business interest is protected by
the existence and enforcement of these Covenant Not-to-Compete and
No Solicitation provisions;
3
4
(3) The business relationship which is created or exists between
the Company and its Client, or the goodwill resulting from it, is a
business asset of the Company and not the Executive; and
(4) Executive will not seek to take advantage of opportunities
which result from his/her employment with the Company and that
entering into the Agreement containing Covenant Not-to-Compete and
No Solicitation provisions is reasonable to protect the Company's
business relationship with its Clients.
(c) Restrictions on Executive. During the term of this Agreement and
for a period of time set forth on Exhibit A after the termination of this
Agreement, for whatever reason, whether such termination was by the Company or
the Executive, voluntarily or involuntarily, and whether with or without cause,
Executive agrees that he/she shall not, as a principal, employer, stockholder,
partner, agent, consultant, independent contractor, employee, or in any other
individual or representative capacity:
(1) Directly or indirectly engage in, continue in, or carry on
the business of the Company or any business substantially similar
thereto, including owning or controlling any financial interest in
any corporation, partnership, firm, or other form of business
organization which competes with or is engaged in or carries on any
aspect of such business or any business substantially similar
thereto;
(2) Consult with, advise, or assist in any way, whether or not
for consideration, any corporation, partnership, firm, or other
business organization which is now, becomes, or may become a
competitor of the Company in any aspect of the Company's business
during the Executive's employment with the Company, including, but
not limited to, advertising or otherwise endorsing the products of
any such competitor or loaning money or rendering any other form of
financial assistance to or engaging in any form of transaction
whether or not on an arm's length basis with any such competitor;
(3) Provide or attempt to provide or solicit the opportunity to
provide or advise others of the opportunity to provide any services
of the type Executive performed for the Company or the Company's
Clients (regardless of whether and how such services are to be
compensated, whether on a salaried, time and materials, contingent
compensation, or other basis) to or for the benefit of any Client
(i) to which Executive has provided services in any capacity on
behalf of the Company, or (ii) to which Executive has been
introduced to or about which the Executive has received information
through the Company or through any Client from which Executive has
performed services in any capacity on behalf of the Company;
(4) Retain or attempt to retain, directly or indirectly, for
itself or any other party, the services of any person, including any
of the Company's employees, who were providing services to or on
behalf of the Company while Executive was employed by the Company
and to whom Executive has been introduced or about whom Executive
has received information through Employer or through any Client for
which Executive has performed services in any capacity on behalf of
the Company;
(5) Engage in any practice, the purpose of which is to evade the
provisions of this Agreement or to commit any act which is
detrimental to the successful continuation of or which adversely
affects the business or the Company; provided, however, that the
foregoing shall not preclude the Executive's ownership of not more
than 2% of the equity
4
5
securities registered under Section 12 of the Securities Exchange
Act of 1934, as amended; or
(6) For purpose of these Covenant Not-to-Compete and No
Solicitation provisions, Client includes any subsidiaries,
affiliates, customers, and clients of the Company's Clients. The
Executive agrees that the geographic scope of this Covenant
Not-to-Compete shall extend to the geographic area where the
Company's Clients conduct business at any time during the Term of
this Agreement. For purposes of this Agreement, "Clients" means any
person or entity to which the Company provides or has provided
within a period of one (1) year prior to the Executive's termination
of employment labor, materials or services for the furtherance of
such entity's or person's business or any person or entity that
within such period of one (1) year the Company has pursued or
communicated with for the purpose of obtaining business for the
Company.
(d) Enforcement. These Covenant Not-to-Compete and No Solicitation
provisions shall be construed and enforced under the laws of the State of
Florida. In the event of any breach of this Covenant Not-to-Compete, the
Executive recognizes that the remedies at law will be inadequate, and that in
addition to any relief at law which may be available to the Company for such
violation or breach and regardless of any other provision contained in this
Agreement, the Company shall be entitled to equitable remedies (including an
injunction) and such other relief as a court may grant after considering the
intent of this Section 5. It is further acknowledged and agreed that the
existence of any claim or cause of action on the part of the Executive against
the Company, whether arising from this Agreement or otherwise, shall in no way
constitute a defense to the enforcement of this Covenant Not-to-Compete, and the
duration of this Covenant Not-to-Compete shall be extended in an amount which
equals the time period during which the Executive is or has been in violation of
this Covenant Not-to-Compete. In the event a court of competent jurisdiction
determines that the provisions of this Covenant Not-to-Compete are excessively
broad as to duration, geographic scope, prohibited activities or otherwise, the
parties agree that this covenant shall be reduced or curtailed to the extent
necessary to render it enforceable.
(e) In an action to enforce or challenge these Covenant
Not-to-Compete and No Solicitation provisions, the prevailing party is entitled
to recover its attorney's fees and costs.
(f) By signing this Agreement, the Executive acknowledges that
he/she understands the effects of these Covenant Not-to-Compete and No
Solicitation provisions and agrees to abide by them.
6. TERMINATION
(a) Death. The Executive's employment hereunder shall terminate upon
his death.
(b) Disability. If during the Term the Executive becomes physically
or mentally disabled in accordance with the terms and conditions of any
disability insurance policy covering the Executive, or, if due to such physical
or mental disability the Executive becomes unable for a period of more than six
(6) consecutive months to perform his duties hereunder on substantially a
full-time basis as determined by the Company in its sole reasonable discretion,
the Company may, at its option, terminate the Executive's employment hereunder
upon not less than thirty (30) days' written notice.
(c) Cause. The Company may terminate the Executive's employment
hereunder for Cause effective immediately upon notice. For purposes of this
Agreement, the Company shall have "Cause" to terminate the Executive's
employment hereunder: (i) if the Executive engages in conduct which has caused
5
6
or is reasonably likely to cause demonstrable and serious injury to Company;
(ii) if the Executive is convicted of a felony as evidenced by a binding and
final judgment, order, or decree of a court of competent jurisdiction; (iii) for
the Executive's neglect of his duties hereunder or the Executive's refusal to
perform his duties or responsibilities hereunder as determined by the Company's
Board of Directors in good faith; (iv) consistent failure to achieve goals
established by the Board of Directors or their designate; (v) gross
incompetence; (vi) for the Executive's violation of this Agreement, including,
without limitation, Section 5 hereof; (vii) chronic absenteeism; (viii) for use
of illegal drugs; (ix) insobriety by the Executive while performing his or her
duties hereunder; and (x) for any act of dishonesty or falsification of reports,
records, or information submitted by the Executive to the Company.
(d) Non-Compete Payment and Liquidated Damages. In the event of a
termination of the Executive's employment pursuant to Section 6 or by the
Executive, all payments and Company benefits to the Executive hereunder, except
the payments (if any) provided below, shall immediately cease and terminate. In
the event of a termination by the Company of the Executive's employment with the
Company for any reason other than pursuant to Section 6(c), the Company shall
pay the Executive Liquidated Damages as defined in (e) below for early
termination of his employment and the Covenant Not-to-Compete set forth in
Section 5 hereof shall remain in full force and effect through the full stated
Term of this Agreement; and additionally, from the end of the Term of this
Agreement through the non-compete period stated on Exhibit "A", the Company
shall pay the Executive Not-to-Compete pay in equal biweekly installments
("Non-Compete Payment Installments") in the amount set forth on Exhibit A
("Non-Compete Payment"). Such Non-Compete Payment, however, shall not be
required to be paid by the Company if the Company elects, in its sole
discretion, to release the Executive from the Covenant Not-to-Compete set forth
in Section 5 hereof. Additionally, if the Company commences paying Executive
Non-Compete Payment Installments and subsequently elects in the future, in its
sole discretion, to release Executive from the Covenant Not-to-Compete and gives
notice to Executive, then, at the effective date of such notice, Executive shall
no longer be subject to the Covenant Not-to-Compete, and no further Non-Compete
Payment Installments shall be due or payable to Executive. If the Company
terminates the Executive's employment pursuant to Section 6(c) or the Executive
terminates such employment, the Executive shall not be entitled to the
Non-Compete Payment, and the Covenant Not-to-Compete set forth in Section 5
hereof shall remain in full force and effect. Notwithstanding anything to the
contrary herein contained, the Executive shall receive all compensation and
other benefits to which he was entitled under this Agreement or otherwise as an
executive of the Company through the termination date.
(e) The Liquidated Damages amount, if due as provided above, shall
be equal to the weekly amount stated on Exhibit A times the number of weeks
remaining between the early termination date and the end of Term as stated on
Exhibit A ("Liquidated Damages"). This amount shall be paid biweekly in equal
installments over such period.
7. TERMINATION AFTER CHANGE OF CONTROL. In the event Executive's
employment hereunder is terminated for any of the reasons set forth in Section
6a, b or c, or by the Executive (other than for Good Reason, defined herein
below), then this Section 7, dealing with Change of Control, shall have no
effect. If, however, Executive's employment hereunder is terminated (i) by the
Executive for Good Reason; or (ii) by the Company (or any successor thereto or
assignee thereof) other than pursuant to Section 6a, b or c, then, in that
event, Executive shall receive (in equal installments and in accordance with
company policy immediately prior to such termination) an amount to be determined
by multiplying by two (2) Executive's base salary and actual bonus for the
calendar year immediately prior to such termination ("Change of Control
Termination Payment"). A "Change in Control" shall be deemed to have occurred if
the event set forth in any one of the following paragraphs shall have occurred:
(i) the following individuals cease for any reason to constitute a
majority of the number of directors then serving: individuals who, immediately
after the annual meeting of shareholders
6
7
of the Company held in 2000, constituted the Board of Directors and any new
directors (other than directors 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, as such terms are used in Rule 14a-11 of Regulation 14A under the Act)
whose appointment or election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors immediately after
the annual meeting of shareholders of the Company held in 2000 or whose
appointment, election or nomination for election was previously so approved; or
(ii) the stockholders of the Company approve a merger,
consolidation or share exchange of the Company with any other corporation or
approve the issuance of voting securities of the Company in connection with a
merger, consolidation or share exchange of the Company (or any direct or
indirect subsidiary of the Company) pursuant to applicable stock exchange
requirements, other than (A) a merger, consolidation or share exchange which
would result in the voting securities of the Company outstanding immediately
prior to such merger, consolidation or share exchange continuing to represent
(either by remaining outstanding or by being converted into the right to receive
voting securities of the surviving entity or any parent thereof) at least 50% of
the combined voting power of the voting securities of the Company or such
surviving entity or any parent thereof outstanding immediately after such
merger, consolidation or share exchange, or (B) a merger, consolidation or share
exchange effected to implement a recapitalization of the Company (or similar
transaction) in which no Person (other than ▇▇▇▇ ▇. ▇▇▇▇▇) is or becomes the
beneficial owner, directly or indirectly, of securities of the Company (not
including in the securities beneficially owned by such Person any securities
acquired directly from the Company or its Affiliates after the annual meeting of
shareholders of the Company held in 2000 pursuant to express authorization by
the Board that refers to this exception) representing 45% or more of either the
then outstanding shares of common stock of the Company or the combined voting
power of the Company's then outstanding voting securities; or (iii) The
stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets (in one transaction
or a series of related transactions within any period of 24 consecutive months),
other than a sale or disposition by the Company of all or substantially all of
the Company's assets to an entity at least 75% of the combined voting power of
the voting securities of which are owned by Persons in substantially the same
proportions as their ownership of the Company immediately prior to such sale.
Notwithstanding the foregoing, no "Change in Control" shall be deemed
to have occurred if there is consummated any transaction or series of integrated
transactions immediately following which the record holders of the common stock
of the Company immediately prior to such transaction or series of transactions
continue to have substantially the same proportionate ownership in an entity
that owns all or substantially all of the assets of the Company immediately
following such transaction or series of transactions.
The Executive may terminate his employment pursuant to and only after
the condition of this Section 7 has occurred for Good Reason; and the Company
expressly acknowledges and agrees that, upon such termination, the Executive
shall be entitled to the Change of Control Termination Payment, as hereinafter
defined, to which the Executive, but for such termination, would otherwise be
entitled. For purposes of this Agreement, "Good Reason" shall mean: (i) any
reduction of the Base Salary or any other compensation or benefits (other than
the Performance Bonus); or (ii) any other material adverse change to the terms
and conditions of the Executive's employment, including but not limited to any
diminution of the Customary Duties (as herebelow defined).
Subsequent to a Change of Control, the Executive shall continue to hold
such office and such level of authority and responsibility within the Company
either (a) as was held immediately prior to such
7
8
Change of Control or (b) of such scope, importance and influence as is
customarily associated with the office held by him at the time of such Change of
Control (hereinafter collectively referred to as the "Customary Duties").
8. Tax Provisions.
(a) No Excess Parachute Payment. It is the intention of the Company
and the Executive that no portion of any benefit or payment under Section 7 or
any other provision of this Agreement, or payments to or for the benefit of the
Executive under any other agreement or plan (collectively, the "Severance
Benefits") be deemed to be an excess parachute payment as defined in Section
280G of the Internal Revenue Code of 1986, as amended (the "Code") or any
successor provision thereto. Notwithstanding any other provision of this
Agreement, if any portion of the Severance Benefits would constitute a parachute
payment within the meaning of Section 280G of the Code, such Severance Benefits
shall be reduced to an amount equal to One Dollar ($1.00) less than the maximum
amount which the Executive may receive without becoming subject to the tax
imposed by Section 4999 of the Code (or any successor provision) or which the
Company may pay without loss of deduction under Section 280G(a) of the Code (or
any successor provision).
(b) Opinion. For purposes of this Section, within sixty (60) days
after delivery of a written notice of termination by the Executive or by the
Company pursuant to this Agreement or written notice by the Company to the
Executive of its belief that there is a payment or benefit due the Executive
which will result in an excess parachute payment as defined in Section 280G of
the Code or any successor provision thereto, the Executive and the Company shall
obtain, at the Company's expense, the opinion (which need not be unqualified) of
nationally recognized tax counsel ("Tax Counsel") selected by the Company's
independent auditors and acceptable to the Executive in the Executive's sole
discretion, which sets forth (A) the "base amount" within the meaning of Section
280G of the Code; (B) the aggregate present value of the payments in the nature
of compensation to the Executive as prescribed in Section 280G(b)(2)(A)(ii); and
(C) the amount and present value of any "excess parachute payment" within the
meaning of Section 280G(b)(1). If such an opinion of Tax Counsel is sought, no
portion of the Severance Benefits shall be paid to the Executive by the Company
until ten (10) days after the opinion is obtained.
In the event that such opinion determines that there would be an excess
parachute payment, the Severance Benefits shall be reduced or eliminated as
specified by the Executive in a written notice delivered to the Company within
thirty (30) days of his receipt of such opinion or, if the Executive fails to so
notify the Company then as the Company shall reasonably determine, so that under
the bases of calculation set forth in such opinion there will be no excess
parachute payment. For purposes of such opinion, the value of any noncash
benefits or any deferred payment or benefit shall be determined by the Company's
independent auditors in accordance with the principles of Sections 280G, which
determination shall be evidenced in a certificate of such auditors addressed to
the Company and the Executive. Such opinion shall be dated as of the date of
termination of the Executive's employment and addressed to the Company and the
Executive and shall be binding upon the Company and the Executive.
The provisions of this Section 8(b), including the calculations,
notices and opinions provided for herein shall be based upon the conclusive
presumption that the compensation earned by the Executive pursuant to the
Company's compensation programs prior to a Change of Control is reasonable,
provided, however, that in the event such Tax Counsel so requests in connection
with the opinion required by this Section 8(b), the Company shall obtain at its
expense, and Tax Counsel may rely on in providing the opinion, the advice of a
firm of recognized executive compensation consultants as to the reasonableness
of any item of compensation to be received by the Executive.
(c) Ruling. The Executive shall have the right to request that the
Company obtain a ruling from the Internal Revenue Service ("IRS") as to whether
any or all payments or benefits determined by such Tax Counsel are, in the view
of the IRS, "parachute payments" under Section 280G. If a ruling is sought
pursuant to the Executive's request, no Severance Benefits payable under this
Agreement in
8
9
excess of the Section 280G limitation shall be made to the Executive until after
fifteen (15) days from the date of such ruling; however, Severance Benefits
shall continue to be paid during the time up to the amount of that limitation.
For purposes of this Section 8, the Executive and the Company shall agree to be
bound by the IRS's ruling as to whether payments constitute "parachute payments"
under Section 280G. If the IRS declines, for any reason, to provide the ruling
requested, the Tax Counsel's opinion shall control and the period during which
the Severance Benefits may be deferred shall be extended to a date fifteen (15)
days from the date of the IRS's notice indicating that no ruling would be
forthcoming.
9. NOTICE. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when hand-delivered, sent by telecopier, facsimile
transmission, or other electronic means of transmitting written documents (as
long as receipt is acknowledged) or mailed by United States certified or
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive, to the address set forth on the signature page.
If to the Company: ▇▇▇▇▇ Enterprises, Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that a notice of change of address shall
be effective only upon receipt.
10. ENFORCEMENT, GOVERNING LAW, AND ATTORNEY'S FEES. It is stipulated
that a breach by Executive of the restrictive covenants set forth in Sections 4
and 5 of this Agreement will cause irreparable damage to Company or its Clients,
and that in the event of any breach of those provisions, Company is entitled to
injunctive relief restraining Executive from violating or continuing a violation
of the restrictive covenants as well as other remedies it may have.
Additionally, such covenants shall be enforceable against the Executive's
successors or assigns or by successor assigns.
The validity, interpretation, construction, and performance of this
Agreement shall be governed by the internal laws of the State of Florida. Any
litigation to enforce this Agreement shall be brought in the state or federal
courts of Hillsborough County, Florida, which is the principal place of business
for Company and which is considered to be the place where this Agreement is
made. Both parties hereby consent to such courts' exercise of personal
jurisdiction over them.
Except where required, to enforce the restrictive covenants regarding
Not-to-Compete, No Solicitation, and Confidential Information, as provided in
Sections 4 and 5 of this Agreement, Company and the Executive will each pay
their own attorney's fees and costs in the event Company or the Executive must
enforce any of the other rights granted to them, regardless of the outcome of
any action seeking to enforce rights under this Agreement.
11. MISCELLANEOUS. No provision of this Agreement may be modified or
waived unless such waiver or modification is agreed to in writing signed by the
parties hereto; provided, however, that the terms of the performance bonus and
fringe benefits set forth or Exhibit A may be amended by the Company in its
discretion without the Executive's consent to the extent provided therein. No
waiver by any party hereto of any breach by any other party hereto shall be
deemed a waiver of any similar or dissimilar term or condition at the same or at
any prior or subsequent time. This Agreement is the entire agreement between the
parties hereto with respect to the Executive's employment by the Company and
there are no agreements or representations, oral or otherwise, expressed or
implied, with respect to or related to the employment of the Executive which are
not set forth in this Agreement. Any prior agreement relating to the Executive's
employment with the Company is hereby superseded and void, and is no longer in
effect. This Agreement
9
10
shall be binding upon and inure to the benefit of the Company, its respective
successors and assigns, and the Executive and his heirs, executors,
administrators and legal representatives. Except as expressly set forth herein,
no party shall assign any of his or its rights under this Agreement without the
prior written consent of the other party and any attempted assignment without
such prior written consent shall be null and void and without legal effect. The
parties agree that if any provision of this Agreement shall under any
circumstances be deemed invalid or inoperative, the Agreement shall be construed
with the invalid or inoperative provision deleted and the rights and obligations
of the parties shall be construed and enforced accordingly. This Agreement may
be executed in one or more counterparts, each of which shall be deemed to be an
original but all of which together will constitute but one and the same
instrument. This Agreement has been negotiated and no party shall be considered
as being responsible for such drafting for the purpose of applying any rule
construing ambiguities against the drafter or otherwise.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
▇▇▇▇▇ ENTERPRISES, INCORPORATED EXECUTIVE
By:
-------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Address:
-----------------------------
-----------------------------
10
11
▇▇▇▇▇ ▇. ▇▇▇▇▇
Group Executive
Executive Vice President
Business Services
EXHIBIT A TO EMPLOYMENT AGREEMENT
This Exhibit A is attached to and made a part of that certain
Employment Agreement dated effective July 31, 2000, entered into by and between
▇▇▇▇▇ Enterprises, Incorporated (the "Company") and ▇▇▇▇▇ ▇. ▇▇▇▇▇ (the
"Executive"), which Employment Agreement supercedes and replaces that certain
Employment Agreement dated March 6, 2000 entered into by and between the Company
and the Executive.
TERM: Period of time ending July 30, 2003
BASE SALARY: $4,461.54 per week
PERFORMANCE BONUS: 0% to 50% of annual base salary
FRINGE BENEFITS: Standard fringe benefits for executives
STOCK OPTIONS: 40,000 options under the ▇▇▇▇▇
Enterprises, Incorporated 2000 Stock
Option Plan. One-third of the options
will vest on each of the first, second,
and third anniversaries of the effective
date of this Agreement.
COVENANT NOT TO COMPETE: Twelve (12) months
NON-COMPETE PAYMENT: $ 2,230.77 per week for 52 weeks
LIQUIDATED DAMAGES: $2,230.77 per week
DIRECTORS & OFFICERS LIABILITY: You will be covered by the Company's
Directors and Officer Liability Policy
the same as other officers of the
Company.
THE COMPANY RESERVES THE RIGHT, AT ITS SOLE DISCRETION, AT SUCH TIME OR TIMES AS
IT ELECTS, TO CHANGE OR ELIMINATE BONUSES OR OTHER BENEFITS.
IN WITNESS WHEREOF, the parties have executed this Exhibit A to the Employment
Agreement as of the 31st day of July, 2000.
▇▇▇▇▇ ENTERPRISES, INCORPORATED EXECUTIVE
By:________________________________
11