AMENDED EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of the 10th day of November, 1998 (the "Effective Date"), between Jupiter
Marine International, Inc. whose address is 0000 X.X. 00xx Xxx, Xxxx Xxxxxxxxxx,
Xxxxxxx (the "Company"), and Xxxx X. Xxxxxxx (the "Executive").
WHEREAS, the Company is in the business of designing, manufacturing and
selling boats (the "Business"); and
WHEREAS, the Company intends to established a valuable reputation and
goodwill in its business, with expertise in all aspects of the Business; and
WHEREAS, the Executive has considerable experience in the marine
industry and particularly designing, manufacturing and selling boats; and
WHEREAS, the Executive is desirous of being employed by the Company,
and the Company has agreed to hire the Executive upon certain terms and
conditions, one of which is the execution of this Agreement by Executive; and
WHEREAS, the Executive, by virtue of the Executive's employment by the
Company shall become familiar with the manner, methods, trade secrets and other
confidential information pertaining to the Company's Business, including the
Company's customer base;
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Company and the Executive do hereby agree as follows:
1. Engagement. The Company hereby employs the Executive as President
and Chief Executive Officer of the Company, and the Executive hereby accepts
such employment, upon the terms and conditions hereinafter set forth.
2. Authority and Power During Employment Period. The Executive shall
have full discretion authority to conduct the Business subject only to the
direction of the Board of Directors of the Company with regard to material
expenditures or those in excess of $30,000. The Executive shall devote full
attention and render exclusive, full time services to the Company, and shall be
employed solely by the Company according to the terms of this Agreement.
3. Term. Except as otherwise provided herein and unless terminated
sooner pursuant to Section 15 of this Agreement, the Term of employment will
commence on the Effective Date and continue for a period of five (5) years
thereafter (the "Term"). This Agreement may be automatically renewed for up to
two (2) successive one (1) year periods upon mutual agreement between the
parties (the "Renewal Term"), unless terminated pursuant to Section 15 of this
Agreement.
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4. Compensation and Benefits.
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a. Salary. The Executive shall be paid a base salary as set
forth in section 4(a) of Schedule A attached hereto.
b. Executive Benefits. The Executive shall be entitled to the
benefits set forth in section 4(b) of Schedule A attached hereto.
c. Business Expense Reimbursement. During the Term or any
Renewal Term of employment, the Executive shall be entitled to receive proper
reimbursement for all reasonable, out-of-pocket expenses incurred by the
Executive (in accordance with the policies and procedures established by the
Company for its executive officers) in performing services hereunder, provided
the Executive properly accounts therefor by providing written receipts to the
Company and provided further that any expense in excess of $1,500 or in the
aggregate of $5,000 must be approved by the Board of Directors.
d. Options. Executive will receive options to purchase an
aggregate of 600,000 shares of Common Stock of the Company (the "Options") as
follows: (i) options to purchase 150,000 shares of Common Stock at $.50 per
share; (ii) options to purchase 150,000 shares of Common Stock at $.625 per
share; (iii) options to purchase 150,000 shares of Common Stock at $.75 per
share; and (iv) options to purchase 150,000 shares of Common Stock at $1.00 per
share. The Options will vest equally over a period of five years. The Options
will be exercisable for a period of five years. The Options may vest at an
accelerated rate as provided on Schedule B hereto.
5. Covenant Not to Compete. Executive acknowledges and recognizes the
highly competitive nature of Company's Business and that the goodwill, continued
patronage, and specifically the names and addresses of the Company's customers
which includes any persons, partnerships, corporations, professional
associations or other organizations for whom the Company has performed Business
Activities (the "Company Customers") constitute a substantial asset of the
Company having been acquired through considerable time, money and effort.
Executive further acknowledges and recognizes that during the course of the
Executive's employment, Executive will receive specific knowledge of Company's
Business, access to trade secrets and Confidential Information, as defined in
Section 8, participate in business and hiring decisions, and that it would be
impossible for Executive to work for a competitor without using and divulging
this valuable confidential information. That Executive acknowledges that Company
is without an adequate remedy at law in the event this covenant is violated.
Executive further acknowledges that this covenant not to compete is an
independent covenant within this Agreement. This covenant shall survive this
Agreement and shall be treated as an independent covenant for the purposes of
enforcement. The Executive recognizes that the terms of this covenant are
reasonable and necessary for the protection of the Company's business because
the value of Executive's services will be enhanced by his association with
Company. Accordingly, Executive agrees to the following:
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a. That during the Restricted Period (as defined herein) and
within the Restricted Area (as defined herein), the Executive will not,
individually or in conjunction with others, directly or indirectly, engage in
any Business Activities (as hereinafter defined) other than on behalf of the
Company, whether as an officer, director, proprietor, employer, partner,
independent contractor, investor, stockholder (other than as a holder of less
than 1% of the outstanding capital stock of a publicly traded corporation),
consultant, advisor, agent or otherwise. Except that during the term of
Executive's employment with the Company, the foregoing limitations as to
Restricted Area shall not be applicable.
b. That during the Restricted Period and within the Restricted
Area (as defined herein), the Executive will not, indirectly or directly,
compete with the Company by soliciting, inducing or influencing any of the
Company's Clients which have a business relationship with the Company at any
time during the Restricted Period to discontinue or reduce the extent of such
relationship with the Company. Except that during the term of Executive's
employment with the Company, the foregoing limitations as to Restricted Area
shall not be applicable.
c. During the term of the Executive's employment with the
Company and for any time thereafter, the Executive will not (a) directly or
indirectly recruit, solicit or otherwise influence any employee or agent of the
Company to discontinue such employment or agency relationship with the Company,
or (b) employ or seek to employ, or cause or permit any business which competes
directly or indirectly with the Business Activities of Company (the "Competitive
Business") to employ or seek to employ for any Competitive Business any person
who is then (or was at any time within six (6) months prior to the date
Executive or the Competitive Business employs or seeks to employ such person)
employed by the Company.
d. During the term of the Executive's employment with the
Company and for any time thereafter, the Executive will not interfere with,
disrupt or attempt to disrupt any past, present or prospective relationship,
contractual or otherwise, between the Company and any Company's client,
employee, agent, vendor, supplier or customer.
6. Non-Disclosure of Confidential Information.
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a. The Executive acknowledges that the Company's trade
secrets, private or secret processes, methods and ideas, as they exist from time
to time, customer lists and information concerning the Company's products,
services, business records and plans, inventions, product design information,
price structure, discounts, costs, computer programs and listings, source code
and/or subject code, copyright, trademark, proprietary information, formulae,
protocols, forms, procedures, training methods, development, technical
information, marketing activities and procedures, method for operating of the
Company's Business, credit and financial data concerning the Company and the
Company's Clients and Client Lists, which Client Lists shall not only mean one
or more of the names and addresses of the Clients of the Company but it shall
also encompass any and all information whatsoever regarding them, including
their needs, and marketing and
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advertising practices and plans and information which is embodied in written or
otherwise recorded form, but it shall also include information which is mental,
not physical (collectively, the "Confidential Information") as valuable, special
and unique assets of the Company, access to and knowledge of which are essential
to the performance of the Executive hereunder. In light of the highly
competitive nature of the industry in which the Company's business is conducted,
the Executive agrees that all Confidential Information, heretofore or in the
future obtained by the Executive as a result of the Executive's association with
the Company, shall be considered confidential.
b. Excluded from the Confidential Information, and therefore
not subject to the provisions of this Agreement, shall be any information which:
(1) At the time of disclosure, is in the public
domain as evidenced by printed publications;
(2) After the disclosure, enters the public domain by
way of printed publication through no fault of the Executive or those
in privity with it;
(3) Executive can show by written documentation was
in its possession at the time of disclosure and which was not acquired
directly or indirectly from the Company; or
(4) Executive can show by written documentation was
acquired, after disclosure, from a third party who did not receive it
from the Company, and who had the right to disclose the information
without any obligation to hold such information confidential.
c. The Executive acknowledges that, as between the Company and
the Executive, the Confidential Information and any and all rights and
privileges provided under the trademark, copyright, trade secret and other laws
of the United States, the individual states thereof, and jurisdictions foreign
thereto, and the goodwill associated therewith, are and at all times will be the
property of the Company.
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d. Executive agrees that he shall:
(1) Hold in confidence and not disclose or make
available to any third party any such Confidential Information unless
so authorized in writing by the Board of Directors of the Company;
(2) Exercise all reasonable efforts to prevent third
parties from gaining access to the Confidential Information;
(3) Not use, directly or indirectly, the Confidential
Information in any respect of its business, except as necessary to
evaluate the information;
(4) Restrict the disclosure or availability of the
Confidential Information to those of Executive's employees who have
read and understand this Agreement and who have a need to know the
information in order to achieve the purposes of this Agreement;
(5) Not copy or modify any Confidential Information
without prior written consent of the Board of Directors of the Company.
(6) Take such other protective measures as may be
reasonably necessary to preserve the confidentiality of the
Confidential Information; and
(7) Relinquish all of his rights in any matter, such
as drawings, documents, models, samples, photographs, patterns,
templates, molds, tools or prototypes, which may contain, embody or
make use of the Confidential Information; promptly deliver to the
Company any such matter as the Company may direct at any time; and not
retain any copies or other reproductions thereof.
e. Executive further agrees:
(1) That it shall promptly disclose in writing to the
Company all ideas, inventions, improvements and discoveries which may
be conceived, made or acquired by Executive or its employees as the
direct or indirect result of the disclosure by the Company of the
Confidential Information to Executive;
(2) That all such ideas, inventions, improvements and
discoveries conceived, made or acquired by Executive, alone or with the
assistance of others, relating to the Confidential Information, shall
be the property of the Company and shall be treated as Confidential
Information in accordance with the provisions hereof and that Executive
shall not acquire any intellectual property rights under this Agreement
except the limited right to use set forth in this Agreement.
(3) That Executive and its employees shall assist in
the preparation and execution of all applications, assignments and
other documents which the
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Company may deem necessary to obtain patents, copyrights and the like
in the United States and in jurisdictions foreign thereto, and to
otherwise protect the Company.
f. Upon written request of the Company, Executive shall return
to the Company all written materials containing the Confidential Information.
Executive shall also deliver to the Company written statements signed by the
Executive certifying all materials have been returned within five (5) days of
receipt of the request.
7. Company's Customers. The "Company's Customers" shall be deemed to be
any persons, partnerships, corporations, professional associations or other
organizations within the POP as defined in Section 9 for whom the Company has
performed or solicited Business Activities.
8. Restrictive Period. The "Restrictive Period" shall be deemed to be
the period of time beginning on the date hereof and continuing through the Term,
or any Renewal Term, and for a period of one (1) year thereafter if this
Agreement is terminated either (i) for Cause or (ii) without cause by the
Executive.
9. Restricted Area. The Restricted Area shall be deemed to mean
anywhere within 200 miles of any Point of Presence ("POP") of the Company (the
"Restricted Area").
10. Business Activities. "Business Activities" shall be deemed to
include any activities related to the Business now or during the effective
period of this Agreement.
11. Covenants as Essential Elements of this Agreement; Survival of
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Covenants.
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a. It is understood by and between the parties hereto that the
foregoing covenants by Executive contained in Sections 5 through 10 of this
Agreement shall be construed to be agreements independent of any other element
of the Executive's employment with the Company. The existence of any other claim
or cause of action, whether predicated on any other provision in this Agreement,
or otherwise, as a result of the relationship between the parties shall not
constitute a defense to the enforcement of the covenants in this Agreement
against the Executive.
b. The covenants by Executive contained in Sections 5 through
10 shall survive the expiration of this Agreement if the Executive continues to
work for the Company, in any manner, without renewing this Agreement. The
Executive further agrees that the covenants set forth in Sections 5 through 10
of this Agreement shall continue to be in effect following the expiration or
termination of the Executive's employment with the Company, or the expiration or
termination of any other provision in this Agreement.
12. Remedies.
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a. The Executive acknowledges and agrees that the Company's
remedy at law for a breach or threatened breach of any of the provisions of
Sections 5 through 10
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herein would be inadequate and the breach shall be per se deemed as causing
irreparable harm to the Company. In recognition of this fact, in the event of a
breach by the Executive of any of the provisions of Sections 5 through 10, the
Executive agrees that, in addition to any remedy at law available to the Company
including, but not limited to, monetary damages, the Company, without posting
any bond, shall be entitled to obtain, and the Executive agrees not to oppose
the Company's request for equitable relief in the form of specific performance,
temporary restraining order, temporary or permanent injunction or any other
equitable remedy which may then be available to the Company.
b. The Executive acknowledges that the granting of a temporary
injunction, temporary restraining order or permanent injunction merely
prohibiting the use of Confidential Information would not be an adequate remedy
upon breach or threatened breach of Sections 5 through 10 and consequently
agrees, upon proof of any such breach, to the granting of injunctive relief
prohibiting any form of competition with the Company. Nothing herein contained
shall be construed as prohibiting the Company from pursuing any other remedies
available to it for such breach or threatened breach.
c. In the event that the Executive shall be in violation of
the aforementioned restrictive covenants as set forth in Sections 5 through 10,
then the time limitation during which breach or breaches should occur, and in
the event the Company should be required to seek relief from such breach in any
court or other tribunal, then the covenant shall be extended for a period of
time equal to the pendency of such proceedings, including appeal.
13. Attorneys' Fees. The Parties agree that in the event that the
either party is required to engage an attorney to enforce the terms of the
covenants in Sections 5 through 10 of this Agreement, the prevailing party in
any law suit, including appeals of such law suit shall pay all costs and
expenses of that attorney or firm.
14. Effect on Prior Agreements. This Agreement supersedes any and all
prior or written agreement in their entirety between the Company and the
Executive, which shall be void and of no further force and effect after the date
of this Agreement.
15. Termination.
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a. Mutual Agreement. The Company and the Executive may
terminate this Agreement by mutual agreement of the parties hereto at any time.
b. Immediate Termination. This Agreement may be terminated
immediately by the Company upon the occurrence of any of the following events:
(1) The death of the Executive;
(2) The Executive has a guardian of the person or
estate appointed by a court of competent jurisdiction;
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(3) The Executive is disabled so as to be unable to
perform duties required under this Agreement for a period of ninety
(90) consecutive days or ninety (90) days in any one-hundred eighty
(180) day period; or
(4) [intentionally omitted]; or
(5) For "Cause," as defined below.
c. "Cause" means (i) committing or participating in an
injurious act of fraud, gross neglect, misrepresentation, embezzlement or
dishonesty against the Company; (ii) engaging in a criminal enterprise involving
moral turpitude; (iii) conviction of a felony under the laws of the United
States or any state thereof; (iv) if applicable, loss of any state or federal
license required for the Executive to perform the Executive's material duties or
responsibilities for the Company; or (v) any assignment of this Agreement in
violation of Section 20 of this Agreement.
Notwithstanding anything else contained in this
Agreement, this Agreement will not be deemed to have been terminated for Cause
unless and until there shall have been delivered to the Executive a notice of
termination stating that the Executive committed one of the types of conduct set
forth in the definition of Cause contained in this Agreement and specifying the
particulars thereof.
16. Notices. Any notice required or permitted to be given under the
terms of this Agreement shall be sufficient if in writing and if sent postage
prepaid by registered or certified mail, return receipt requested; by overnight
delivery; by courier; or by confirmed telecopy, in the case of the Executive to
the Executive's last place of business or residence as shown on the records of
the Company, or in the case of the Company to its principal office as set forth
in the introductory paragraph, or such other place as it may designate.
17. Waiver. Unless agreed in writing, the failure of either party, at
any time, to require performance by the other of any provisions hereunder shall
not affect its right thereafter to enforce the same, nor shall a waiver by
either party of any breach of any provision hereof be taken or held to be a
waiver of any other preceding or succeeding breach of any term or provision of
this Agreement. No extension of time for the performance of any obligation or
act shall be deemed to be an extension of time for the performance of any other
obligation or act hereunder.
18. Complete Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the contents hereof and supersedes
all prior agreements and understandings between the parties with respect to such
matters, whether written or oral. Neither this Agreement nor any term or
provision hereof may be changed, waived, discharged or amended in any manner
other than by an instrument in writing, signed by the party against which the
enforcement of the change, waiver, discharge or amendment is sought.
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19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute but one agreement.
20. Binding Effect/Assignment. This Agreement shall be binding upon the
parties hereto, their heirs, legal representatives, successors and assigns. This
Agreement shall not be assignable by the Executive but shall be assignable by
the Company in connection with the sale, transfer or other disposition of its
business or to any of the Company's affiliates controlled by or under common
control with the Company.
21. Governing Law. This Agreement shall become valid when executed and
accepted by Company. The parties agree that it shall be deemed made and entered
into in the State of Florida and shall be governed and construed under and in
accordance with the laws of the State of Florida. Anything in this Agreement to
the contrary notwithstanding, the Executive shall conduct the Executive's
business in a lawful manner and faithfully comply with applicable laws or
regulations of the state, city or other political subdivision in which the
Executive is located.
22. Headings. The headings of the sections are for convenience only and
shall not control or affect the meaning or construction or limit the scope or
intent of any of the provisions of this Agreement.
23. Survival. Any termination of this Agreement shall not, however,
affect the ongoing provisions of this Agreement which shall survive such
termination in accordance with their terms.
24. Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein. If any court
determines that any provision of Section 5 or 6 hereof is unenforceable because
of the duration or scope of such provision, such court shall have the power to
reduce the scope or duration of such provision, as the case may be, and, in its
reduced form, such provision shall then be enforceable.
25. Enforcement. Should it become necessary for any party to institute
legal action to enforce the terms and conditions of this Agreement, the
successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs.
26. Venue. Company and Executive acknowledge and agree that the U.S.
District for the Southern District of Florida, or if such court lacks
jurisdiction, the 15th Judicial Circuit (or its successor) in and for Palm Beach
County, Florida, shall be the venue
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and exclusive proper forum in which to adjudicate any case or controversy
arising either, directly or indirectly, under or in connection with this
Agreement and the parties further agree that, in the event of litigation arising
out of or in connection with this Agreement in these courts, they will not
contest or challenge the jurisdiction or venue of these courts.
27. Construction. This Agreement shall be construed within the fair
meaning of each of its terms and not against the party drafting the document.
THE PARTIES TO THIS AGREEMENT HAVE READ THIS AGREEMENT, UNDERSTAND ITS TERMS AND
CONDITIONS, HAVE HAD THE OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL OF
THEIR OWN CHOICE AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
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IN WITNESS WHEREOF, the Effective Date shall be the date the Agreement has been
accepted by the Company at its principal offices in __________County, Florida.
THE COMPANY
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By:
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, President
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THE EXECUTIVE
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SCHEDULE A
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SCHEDULE B
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