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EXHIBIT 10.22
EMPLOYMENT AGREEMENT
1. Identification
This Employment Agreement (the "Agreement"), dated for identification
purposes only August 21, 2000, is entered into by and between Solutions America,
Inc., a Delaware corporation ("Company") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual
("Executive").
2. Recitals
2.1. Company is engaged in the business of providing E-Commerce
related services for the benefit of businesses offering goods and services for
sale on the Internet.
2.2. Executive has special skills and abilities in management and
administration.
2.3. Company desires to employ Executive and Executive is willing to
undertake such employment on the terms and conditions set forth in this
Agreement.
3. Employment, Duties and Covenants
3.1. Employment. During the "Term" (as hereinafter defined), (i)
Company shall employ Executive as its Senior Vice President of Technology and
Chief Technology Officer with powers and duties consistent with such position,
and (ii) Company shall also employ Executive, and Executive shall so serve, in
such substitute or additional offices or positions with Company or any
subsidiary or affiliate of Company (consistent with the position named above) as
may, from time to time, be determined by the President and/or Chief Executive
Officer.
3.2. Duties. Executive hereby accepts employment in such capacity on
the terms and conditions set forth herein. The powers, duties and
responsibilities to be held or performed by Executive hereunder shall be such as
inhere in the position of and such other powers, duties and responsibilities as
may be delegated or assigned to Executive by the President and/or Chief
Operating Officer; provided, however, that such other powers, duties and
responsibilities shall be consistent with Executive's position, experience and
level of compensation.
3.3. Performance of Duties. Executive shall discharge the duties
described herein in a diligent and professional manner. Executive shall render
services incidental to his position, during normal business hours, primarily, at
Company's present place of business in Culver City, California,
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or at such other premises as may be occupied by Company or where Company may
conduct its business during the Term. Company agrees that, notwithstanding that
Executive may be required to temporarily travel to other places in the course of
performing his duties, in the absence of Executive's written consent, he shall
not be required to move his permanent residence outside of the Los Angeles
metropolitan area.
3.4. Extent of Services. Executive shall devote his full and exclusive
productive time, energy, effort, attention and ability solely to the performance
of his duties as set forth above, and to the proper and efficient management and
development of the business and operations of Company. Executive shall perform
industriously and to the best of his ability, experience and talents all of the
duties which may be required of him from time to time, pursuant to the terms
hereof, to Company's full and complete satisfaction. During the Term, Executive
shall not engage in any other occupation, and without Company's prior written
consent, Executive shall not, directly or indirectly, at any time during the
Term, render services of a business, professional or commercial nature to any
other person, firm or entity whether without compensation or for any form of
compensation whatsoever. Notwithstanding the foregoing, Executive may act for
his own account in passive-type investments, or as a member of other boards of
directors, or engage in charitable activities, where the time allocated for
those activities does not materially interfere with the discharge of his duties
for Company.
3.5. Company's Authority. Executive shall observe and comply at all
times with the directions of the President and/or Chief Executive Officer
regarding Executive's performance of his duties and with Company's business
policies, rules and regulations as adopted by the Board of Directors (the
"Board"). Executive shall carry out and perform any and all orders, directions,
and policies, consistent with Executive's position, as may be so stated by the
President and/or Chief Executive Officer from time to time, either orally or in
writing.
3.6. Results and Proceeds. Company owns all right, title and interest
to all of the results and proceeds arising out of or as a result of all services
performed by Executive on behalf of Company.
3.7. Nonsolicitation of Gifts. Without Company's prior written consent
in each instance, Executive shall not solicit or accept, for himself or for the
benefit of any third party or entity, any contribution, donation, gift, discount
or rebate or the like of material value or in violation of applicable law from
any person, firm or entity with whom Company maintains any business
relationship.
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3.8. Competitive Activities Prohibited. During the Term, Executive
shall not, directly or indirectly (unless disclosed to Company and approved by
Company in writing in its sole and absolute discretion):
3.8.(a) engage in any activity competitive with or adverse to the
business, activities or welfare of Company, whether alone, as an agent, as a
lender, as a general or limited partner of a partnership, as a member or manager
of a limited liability company, or as an officer, director or holder of the
outstanding shares of capital stock of any corporation;
3.8.(b) engage in any conduct or activity which would cause
Company or Executive to be in a position of conflict of interest or cause
Company to be in violation of any law, regulation, policy, statement or rule of
any applicable governmental authority; or
3.8.(c) undertake planning for or organization of any business
activity competitive with Company's business.
4. Term and Termination of Agreement
4.1. Term of Employment. Executive's employment under this Agreement
shall be for one (1) year, commencing on August 15, 2000 and ending on August
14, 2001 (the "Term"). The Term shall automatically be extended for one (1)
additional year, unless either Executive or Company gives written notice to the
other at least three (3) months prior to expiration of the Term that the Term
shall not be so extended.
4.2. Termination.
4.2.(a) Executive's employment may be terminated without cause or
grounds therefor by Company or Executive upon thirty (30) days' prior written
notice from the terminating party. In addition, Company may terminate
Executive's employment for "Cause" as provided in Section 4.2(b) at any time
without prior notice.
4.2.(b) Company may terminate Executive for "Cause". Any
termination of Executive's employment hereunder shall be deemed to be for
"Cause" if:
4.2.(b)(i) Executive has materially breached a
provision of this Agreement, and if such breach is curable, Executive has been
provided written notice from Company
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identifying the alleged material breach, and Executive has failed within ten
(10) days thereafter to cure the material breach;
4.2.(b)(ii) Executive is convicted of or pleads guilty
to a felony charge involving financial misconduct or moral turpitude;
4.2.(b)(iii) Executive has misappropriated any funds or
property of Company;
4.2.(b)(iv) Executive fails to comply with the
reasonable oral or written directions of the Board, the President or the Chief
Executive Officer consistent with Executive's position and such failure is not
cured within five (5) days after written notice from Company;
4.2.(b)(v) Executive is incompetent in performing his
assigned duties or responsibilities; or
4.2.(b)(vi) Executive commits any other act or fails to
take any action which a court or arbitrator of competent jurisdiction could
justify as grounds for dismissal for "Cause".
4.3. Death. In the event of Executive's death during the Term,
Executive's employment with Company shall terminate.
4.4. Disability. If during the Term of this Agreement Executive
becomes "Totally Disabled" (which for the purposes of this Agreement shall be
deemed to occur if Executive is unable to perform his services and engage in his
regular occupation pursuant to this Agreement due to physical or mental
disability for a period of ninety (90) consecutive days, or for ninety (90) days
during any three hundred sixty five (365) day period), Company shall have the
right to terminate Executive's employment.
4.5. Legal Obligations Following Termination.
4.5.(a) If Executive's employment hereunder is terminated by
Executive as provided in Section 4.2(a) or by the Company as provided in
Sections 4.2(b), 4.3 or 4.4, then Company shall be liable to pay Executive only
the following amounts: (i) Executive's salary through and including the
"Effective Date of Termination", which for purposes of this Agreement shall be
the last day on which Executive performed services pursuant to the terms of this
Agreement, unless the notice of termination of this Agreement provides for
payment through a later date; (ii) Executive's salary for
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the pro rata portion of any vacation to which he was entitled but which he has
not taken; (iii) reimbursement of any expenses previously incurred pursuant to
Section 5.3; and (iv) any benefits to which Executive is actually entitled under
Article 5 hereof. If Executive's employment hereunder is terminated prior to the
end of the Term of this Agreement by Company pursuant to Section 4.2(a) or as a
result of Company's material breach, in addition and with no duty or obligation
to mitigate or seek other employment, Executive shall be paid the amount of his
annual salary remaining for the balance of the Term of this Agreement pursuant
to Section 5.1, all stock options held by Executive, to the extent not already
vested or exercisable, shall become immediately exercisable, and Executive shall
be provided the life insurance, disability insurance and health insurance
benefits pursuant to Section 5.5 for the remainder of the Term.
4.5.(b) If Executive's employment is terminated, the vacation to
which Executive would be entitled for his last year of service shall be
prorated. If Executive has already taken more vacation than that to which he is
entitled, Company shall be entitled to offset any sums owed by it to Executive
against the amount of salary received by Executive for the number of vacation
days taken in excess of vacation days which he was entitled to take.
4.5.(c) The termination of this Agreement and Executive's
employment hereunder shall not affect Executive's right to exercise any vested
stock options in accordance with the terms of Company's Stock Option Plan, and
shall not relieve either party from any liability or damage directly or
indirectly arising out of any breach of or default under this Agreement or any
failure to comply with or perform any obligations under this Agreement, and
termination of Executive's employment shall not affect Company's rights under
Article 6.
5. Compensation and Other Benefits
5.1. Annual Salary. As compensation for services rendered by Executive
to Company, Company shall pay Executive an annual salary in the amount of Two
Hundred Thousand ($200,000) Dollars for each year of the Term, prorated for any
partial period. The annual salary shall be payable in accordance with Company's
regular payroll practices.
5.2. Employment Taxes. All compensation shall be subject to the
customary withholding tax and other employment taxes as required with respect to
compensation paid by a company to an employee.
5.3. Expenses. Company and Executive hereby acknowledge that Executive
may be required, during the Term, to incur certain expenses in connection with
his employment hereunder
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including, but not limited to, parking, travel, entertainment, and other
expenses. Company shall reimburse Executive for ordinary and necessary business
expenses incurred by Executive in the performance of his duties hereunder if
such expenses have previously been approved by Company in writing or if
reimbursement is otherwise appropriate in accordance with Company's established
policies and if Company receives such verification thereof as Company may
require.
5.4. Stock Options. Executive understands that Company is currently in
the process of designing and implementing a stock option program for its
executives and employees. Upon adoption of such plan and upon the formation of a
Compensation Committee of the Company's Board of Directors, Company shall grant
to Executive stock options, conditioned on the closing of the Company's initial
public offering or merger with a public company, to purchase that number of
shares of Common Stock of the Company, the amount of which is to be determined
by the Compensation Committee of the Company's Board of Directors, equal to
[______] percent (___%) of the Company's issued and outstanding prepublic
offering capitalization on a fully diluted basis at the lowest purchase price
for which options are to be granted under the Company's stock option plan prior
to the initial public offering or merger with a public company. [_____________]
percent (___%) of the stock options granted to Executive as determined by
Compensation Committee of the Company's Board of Directors will automatically
vest and become exercisable on that date which is ninety (90) days after the
commencement date of the Term. The balance of the stock options shall vest in
three (3) equal cumulative installments on the first anniversary date, second
anniversary date and third anniversary date, respectively, of Executive's
employment hereunder. If, Executive's unvested stock options would be terminated
as a result of a "Change in Control" then, all of Executive's unvested options,
if any, shall become immediately exercisable. For purposes of this Agreement,
the term "Change in Control" means: (a) the obtaining of control by any person
or "group" (other than the persons who own five percent (5%) or more of the
shares of the Company as identified in the Company's Registration Statement on
Form S-1 filed in connection with the Company's initial public offering) within
the meaning of Section 13(d) or Section 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), of beneficial ownership (within the
meaning of the Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of voting securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding voting securities
entitled to vote generally in the election of directors; or (b) such time as a
majority of the Board shall be comprised of persons who were not elected to such
offices as part of the "Company nominated slate" of directors (i.e. the slate of
nominees proposed by the Board in office immediately prior to the election;
provided, however, that this clause shall not apply in the event one or more
directors voluntarily resign from the Board. All other terms and conditions of
Executive's stock options shall be in accordance with the terms of the Company's
stock option plan.
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5.5. Other Benefits. During the Term of this Agreement, Executive
shall receive such other life insurance, pension, disability insurance, health
insurance, holiday, vacation and sick pay benefits which Company extends, as a
matter of policy, to its executive employees and, except as otherwise provided
herein, shall be entitled to participate in all deferred compensation and other
incentive plans of Company on the same basis as other like employees of Company.
Without limiting the generality of the foregoing, Executive shall be entitled to
four (4) weeks vacation during each year of the Term of this Agreement, which
shall be scheduled in Executive's discretion, subject to and taking into account
the business exigencies of Company. Unused vacation may be accrued for one (1)
year only. Vacation in excess of two (2) consecutive weeks shall be subject to
the reasonable approval of the Board.
6. Confidential Information/Nonsolicitation
6.1. Confidential Information. "Confidential Information" means all
information, data and knowledge of a business, professional or technical nature
relating to the business or operations of Company, information which is not
generally known outside of Company, or information entrusted to Company by third
parties subject to confidentiality obligations, and includes information known
to Executive as confidential or secret or which Executive shall have reason to
know or reasonably should know is confidential or secret, to the extent that
such information derives potential or actual independent economic value from not
being generally known to, and not being readily ascertainable by proper means
by, other persons who can obtain potential or actual economic value from this
disclosure or use and is the subject of efforts reasonable under the
circumstances to maintain its secrecy. Confidential Information may relate, for
example, to trade secrets, customer lists, customers' names and requirements,
customer businesses, customer profiles, customer finances, customer accounts,
employees, business methods, business or marketing plans, personnel information,
credit information, financial information, the names and locations of vendors
and suppliers, equipment, equipment design, research, development, engineering,
manufacturing, purchasing, accounting, selling, marketing, contractors,
compositions, computer software, computer hardware, computer applications and
tools, algorithms, object code, source code, technology, research,
infrastructures, products, procedures, calculations, specifications,
developments, formulae, compilations, inventions, designs, plans, databases,
database structure, data, accounts, billing methods, pricing, costs, business
methods, systems, plans, internal affairs, legal affairs, security methods,
creative ideas and concepts, projects, advertising, merchandising techniques and
any and all information entrusted to the Company by third parties. This
information may be contained in materials ("Materials") such as books, records,
files, notes, lists, computer programs, tapes, cd roms, hard disc and soft disc
drive mechanisms, other mechanisms for electronic or digital storage of
information, computer printouts, data input to computers, drawings, documents,
data, reports,
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customer, price and supplier lists, specifications, or other miscellaneous
embodiments, or may be in the nature of, or consist of, verbal communication or
unwritten knowledge, techniques, formulas, processes, practices or know-how.
Notwithstanding the foregoing, Confidential Information does not include any
information which: (a) is demonstrated by Executive to have been already known
to him, at the time of receipt, from a source other than Company or a third
party subject to a confidentiality obligation to Company with respect to such
information; (b) is or becomes generally available to the public other than as a
result of disclosure by Executive; (c) is first received by Executive from a
third party not subject to a confidentiality obligation to Company with respect
to such information; (d) is furnished by Company to a third party without any
confidentiality restrictions; (e) is approved for disclosure making it generally
available to the public by any express written authorization of Company; or (f)
is demonstrated by Executive to have been independently developed by him prior
to the start of his employment relationship with Company, through or as a result
of his work with other persons or entities and without the use of Company's
Confidential Information.
6.2. Acknowledgment by Executive and Company. The Executive and
Company acknowledge that Executive, based on prior knowledge and experience, may
develop information for the Company and, as such, this new information will be
deemed confidential information.
6.3. Acknowledgment by Executive. Executive acknowledges that Company
will be required hereunder to make Confidential Information available to
Executive which has been developed at great expense and effort by Company
because knowledge of such Confidential Information will be essential to the
performance of Executive's duties under this Agreement. Executive recognizes
that Company has expert knowledge in its field and that many of its methods, and
much of its know-how is expert and unique and its customer and potential
customer contracts are of substantial commercial value. Executive further
acknowledges, without limiting the generality of the foregoing, that the
identity, business needs, desires and peculiarities of customers and suppliers
of Company constitutes valuable Confidential Information. Executive also
acknowledges that prior to or during his employment with Company he may be given
access to or become acquainted with Confidential Information. Executive
acknowledges that such Confidential Information is a valuable, special, unique
asset of Company's business.
6.4. No Use or Disclosure. Without Company's prior written
authorization, Executive shall not communicate, use, divulge, or disclose to any
other person, firm or entity any Confidential Information or any copy,
reproduction or summary thereof, in any manner, at any time, whether during or
after the Term other than as expressly required in the performance of any
party's obligations to Company, or as required by law.
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6.5. Ownership. Executive acknowledges that the relationship between
the parties hereto is exclusively that of employee and employer, and that
Company's obligations to Executive are exclusively contractual in nature.
Company shall be the sole owner in perpetuity throughout the universe of all the
results and proceeds of Executive's services hereunder. Executive further
acknowledges and agrees that all Confidential Information, Materials, documents,
concepts, ideas, improvements, plans, computer programs, applications and tools,
algorithms, object code, source code, compositions, reports, notes, memoranda,
records, compilations, original works of authorship, formulas, techniques,
programs, work product and other materials of any kind or character which
Executive makes, compiles or conceives, either solely or with others, during his
employment by Company which are applicable directly or indirectly to any phase
of Company's business, and all copies or abstracts thereof, ("Company
Materials"), shall automatically become Company's sole and exclusive property
and Company shall be deemed the owner and author thereof. Executive further
acknowledges that all such Company Materials shall constitute "works made for
hire" within the meaning of the copyright laws of the United States. Executive
hereby irrevocably assigns to Company all right, title and interest in and to
all Company Materials, including, without limitation, all copyrights, trademarks
and patents pertaining thereto, and any other proprietary rights based thereon,
and all renewals, extensions, subdivisions and continuations-in-interest
thereof. Executive shall, at the request of Company, execute such assignments,
certificates, or other instruments as Company may from time to time deem
necessary or desirable to evidence, protect, establish, maintain, perfect,
enforce or defend its right, title and interest in or to any such rights
properties or products. In the event Executive fails to comply with the
preceding sentence, Executive irrevocably designates and appoints Company and
each of its duly authorized officers and agents as his attorney-in-fact to
execute and to file any document and to do all other lawfully permitted acts to
further the protection, issuance and enforcements of copyrights, trademarks,
patents and other proprietary rights with the same force and effect as if
executed and delivered by Executive. No Company Materials, Materials or
Confidential Information will be made available by Executive to others during or
following his employment with Company without the advance written permission
from the Board.
6.6. Third Party Trade Secrets. In the same way that Company
endeavors to protect its own Confidential Information, Company endeavors not to
engage in any conduct which would violate the legal protection afforded to the
trade secret information of third parties. Under no circumstances will Company
accept the improper disclosure of other parties' trade secrets. Therefore, in
rendering Executive's services hereunder, Executive agrees not to disclose to
Company or utilize in any manner trade secret information in Executive's
possession belonging to any other party.
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6.7. No Soliciting. While employed by Company and for a period of six
(6) months thereafter, except without express prior written approval of the
Board, Executive shall not engage in conduct that interferes with the Company's
business including, without limitation, by: (a) planning for, acquiring any
financial interest in, or performing any services for Executive or any other
person or entity in connection with a business in which Executive's interest,
duties or activities require Executive to utilize or reveal any Confidential
Information; (b) attempting to employ, enticing, encouraging or soliciting for
employment by others, any of Company's employees; (c) inducing or attempting to
induce a consultant or other independent contractor to sever his or her
relationship with Company; (d) diverting or attempting to divert (by
solicitation or otherwise) or obtaining business from any of Company's clients
or customers; (e) making known to any person, firm, corporation or other entity
the identities or addresses of any client or customer; or (f) soliciting,
causing to be solicited or accepting the disclosure of any Confidential
Information for any purpose whatsoever except as expressly required by Company
in order to enable Executive to perform all job duties required of Executive
herein.
6.8. No Removal or Duplication. Without Company's prior written
consent in each instance, or except as expressly required by Company in
connection with Executive's duties as an executive of Company, Executive shall
not at any time, whether prior to or after Executive's employment with Company
ends, remove, reproduce, summarize or copy any Confidential Information, or
authorize, participate in, aid or abet such removal, reproduction, summarizing
or copying. Executive shall immediately return to Company all Confidential
Information, Materials and Company Materials, including all copies and summaries
thereof, when Executive's employment by Company ends for any reason or at any
time when Company may otherwise require that such Confidential Information,
Materials or Company Materials be returned.
6.9. Material Term. Executive acknowledges that maintaining the
confidentiality of such Confidential Information is necessary to the successful
conduct of the business of Company and its goodwill, and that any breach of any
term of this Article 6 shall be a material breach of this Agreement.
7. Specific Performance; Survivability
7.1. Specific Performance. Without in any manner limiting the
provisions of Article 6, Executive recognizes and acknowledges that all of the
Confidential Information, as it may exist from time to time, is a valuable,
special and unique trade secret asset of Company. Executive agrees that the
remedy at law for a breach of the covenants contained in Article 6 is inadequate
and that therefore in the event of a breach, or threatened breach by Executive
of the provisions of Article 6,
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Company shall be entitled to an injunction or restraining order restraining
Executive from disclosing in whole or in part any Confidential Information, or
from rendering any services to any person, firm, corporation, association or
other entity to whom such Confidential Information, in whole or in part, may
have been disclosed or is threatened to be disclosed or from breaching the
covenants contained in Article 6. Nothing herein shall be construed as
prohibiting Company from pursuing any other remedies available to Company for
such breach or threatened breach, including the recovery of damages from
Executive. To the extent permissible by law, Executive specifically waives the
necessity for Company to post bond in any injunctive or similar proceeding, and
in any event, consents to the posting of the smallest bond allowed by law.
7.2. Reasonableness of Restrictions. Executive acknowledges that his
covenants contained in Article 6 are a material part of the consideration for
this Agreement, are reasonably necessary to protect legitimate interests of
Company, are reasonable in scope and duration and are not unduly restrictive.
7.3. Survivability. All covenants and agreements contained in Article
6 shall survive the termination of this Agreement and Executive's employment
with Company.
8. Indemnification
Company shall, to the maximum extent permitted by law, indemnify and
hold Executive harmless from and against all claims, actions, causes of actions,
judgments, liabilities, obligations and expenses, including without limitation,
attorneys' fees, court costs, judgments, fines, settlements, and other amounts
actually incurred arising out of, relating to or in connection with Executive's
employment by Company, his services as an officer of Company, or the discharge
of his duties hereunder; provided, however, that the foregoing indemnity shall
not apply to any activity which is beyond the scope of his employment or agency
authority. Company shall advance to Executive any expenses incurred in defending
any such proceeding to the maximum extent permitted by law.
9. Arbitration
Any controversy or claim arising out of or relating to this Agreement
including, but not limited to, any claim relating to its validity,
interpretation, enforceability or breach, or any other claim or controversy
arising out of the employment relationship or the commencement or termination of
that relationship, including, but not limited to, claims for breach of covenant,
breach of an implied covenant or intentional infliction of emotional distress,
which are not settled by
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agreement between the parties, shall be settled by final and binding arbitration
to be heard on an expedited basis by a neutral retired California Superior Court
or Appellate Court judge in Orange County, California in accordance with the
employment dispute resolution rules of the American Arbitration Association
("AAA") in effect at the time a claim is filed. In consideration of each party's
agreement to submit to arbitration all disputes with regard to this Agreement or
with regard to any alleged contract or tort or other claim arising out of the
employment relationship or the commencement or termination of that employment
relationship, and in consideration of the anticipated expedition and the
minimizing of expense of this arbitration remedy, each party agrees that the
arbitration provisions of this Agreement shall provide it with its exclusive
remedy and each party expressly waives any right it might have to seek redress
in any other forum except as provided in Article 7 and Section 10.1. The parties
agree that this means that they are giving up their right to a jury trial and to
trial in a court of law in favor of the right to arbitrate. The parties further
agree that the arbitrators acting hereunder shall be empowered to assess any
remedy including, but not limited to, injunctive orders (including temporary,
preliminary and permanent relief) when appropriate. It is specifically
contemplated and agreed by the parties hereto that discovery may be conducted by
any party pursuant to the provisions of Section 1283.05 of the California Code
of Civil Procedure which are hereby incorporated into, and made a part of, and
made applicable to this Agreement, and the arbitrators shall have the full power
of a Court of the State of California to issue and enforce subpoenas. A written
judgment upon any award rendered by the arbitrator may be entered in any court
having jurisdiction. In reaching a decision, the arbitrator shall be required to
apply substantive California and federal law and, shall have no authority to
change, extend, modify or suspend any of the terms of this Employment Agreement.
10. General Provisions
10.1. Injunctive Relief. In the event of a breach by Executive of any
of his undertakings hereunder, Executive agrees that in addition to any other
rights or remedy provided by law or equity, a restraining order or an injunction
may issue against Executive to enforce compliance with this Agreement.
10.2. No Personal Interest. Executive shall not have any personal
interest, direct or indirect, in any supplier of, or in any transaction between,
any supplier and Company.
10.3. Assignment. Neither this Agreement nor any rights or benefits
hereunder shall be subject to execution, attachment or similar process and
Executive may not assign, transfer, pledge or hypothecate this Agreement or any
rights or benefits hereunder without the prior written consent of Company. Any
such assignment, transfer, pledge or hypothecation hereof by Executive in
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violation of this provision shall be null, void and of no effect. Subject to the
foregoing, this Agreement and all of the terms and conditions hereof shall
benefit and bind Company and its successors and assigns and shall benefit and
bind Executive and his successors. Company's rights hereunder shall accrue to
the benefit of any person, firm, or corporation which may succeed to its
business by merger, purchase of stock or assets, or otherwise.
10.4. Integration. Neither of the parties hereto have made any
representations, statements, warranties or other agreements other than those
expressed herein. This Agreement embodies the entire understanding of the
parties with respect to the subject matter contained in it and supersedes all
prior and contemporaneous agreements, representations, or understandings,
written or oral, between the parties. This Agreement may be amended or modified
only by a written agreement, signed by the parties hereto.
10.5. Notices.
10.5.(a) All notices, requests, payments, statements, demands or
other communications given under this Agreement (collectively "Communications")
shall be in writing. Notice shall be sufficiently given for all purposes as
follows:
(1) PERSONAL DELIVERY. When personally delivered to
the recipient. Notice is effective on delivery.
(2) FIRST-CLASS MAIL. When mailed first class to the
last address of the recipient known to the party giving notice. Notice is
effective three (3) mail delivery days after deposit in a United States Postal
Service office or mailbox.
(3) CERTIFIED MAIL. When mailed certified mail, return
receipt requested. Notice is effective on receipt, if delivery is confirmed by a
return receipt.
(4) OVERNIGHT DELIVERY. When delivered by (overnight
delivery Federal Express/Airborne/United Parcel Service/DHL WorldWide Express),
charges prepaid or charged to the sender's account. Notice is effective on
delivery, if delivery is confirmed by the delivery service.
(5) TELEX OR FACSIMILE TRANSMISSION. When sent by
telex or fax to the last telex or fax number of the recipient known to the party
giving notice. Notice is effective on receipt, provided that (a) a duplicate
copy of the notice is promptly given by first-class or certified mail or by
overnight delivery, or (b) the receiving party delivers a written confirmation
of receipt. Any
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notice given by telex or fax shall be deemed received on the next business day
if it is received after 5:00 p.m. (recipient's time) or on a nonbusiness day.
10.5.(b) Addresses for purpose of giving notice are as follows:
If to Company: Solutions America, Inc.
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▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Chairman of the Board & CEO
If to Executive: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
10.5.(c) Any correctly addressed notice that is refused,
unclaimed, or undeliverable because of an act or omission of the party to be
notified shall be deemed effective as of the first date that said notice was
refused, unclaimed, or deemed undeliverable by the postal authorities,
messenger, or overnight delivery service.
10.5.(d) Either party may change its address or telex or fax
number for purposes of this Section 10.5 by notifying the other party of its new
address in the manner set forth in this Section 10.5.
10.6. Governing Law; Severability. This Agreement is made under and
shall be construed in accordance with the laws of the State of California.
Nothing in this Agreement shall be construed to require the commission of any
act contrary to law, and wherever there is any conflict between any provision of
this Agreement and any present or future statute, law, ordinance or regulation
contrary to which the parties have no legal right to contract, the latter shall
prevail, but in such event the provision of this Agreement so affected shall be
curtailed and limited only to the extent necessary to bring it within the
requirement of the law. If any term or provision of this Agreement is determined
by a Court of competent jurisdiction to be illegal, invalid, or unenforceable
for any reason whatsoever, such illegality, invalidity, or unenforceability
shall not affect the remaining terms and provisions of this Agreement, which
remaining terms and provisions shall remain in full force and effect.
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10.7. Waiver. A waiver of any of the terms and conditions hereof by
Company or Executive shall not constitute a waiver of any other term or
condition hereof, nor shall it constitute a general waiver by the waiving party,
and the waiving party shall be free to reinstate any such term or condition
without notice to the other party.
10.8. Headings. The Article and Section headings used herein are for
convenience only and are not a part of this Agreement.
10.9. Gender. Whenever required by the context hereof, the singular
shall be deemed to include the plural and the plural to include the singular,
and the masculine, feminine and neuter gender shall each be deemed to include
the others.
10.10. Counterparts. This instrument may be executed in counterparts,
each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and at the place indicated opposite their respective
signatures below.
"COMPANY"
SOLUTIONS AMERICA, INC.,
a Delaware corporation
Executed at _____________, California
this ____ day of _____________, 2000 By: __________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇
President and Chief Operating
Officer
"EXECUTIVE"
Executed at _____________, California
this ____ day of _____________, 2000 By: _________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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