Exhibit 10.9
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 6th day of March, 2000, by and between XXXXX
ENTERPRISES, INCORPORATED, a Florida corporation (the "Company"), and XXXXXXX X.
XXXXX (the "Executive").
WITNESSETH:
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 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 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 Client
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 Client 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) 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 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
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. 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: Xxxxx Enterprises, Incorporated
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
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.
8. 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.
9. 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 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.
XXXXX ENTERPRISES, INCORPORATED EXECUTIVE
By:
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Xxxxxxx X. Xxxxx
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Address
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EXHIBIT A TO EMPLOYMENT AGREEMENT
Xxxxxxx X. Xxxxx
General Manager and Senior Vice President, Americas
This Exhibit A is attached to and made a part of that certain Employment
Agreement dated effective March 6, 2000, entered into by and between Xxxxx
Enterprise, Incorporated (the "Company") and Xxxxxxx X. Xxxxx (the "Executive"),
which supercedes and replaces all other Employment Agreements entered into by
and between the Company and the Executive.
Effective Date: July 6, 2001
Term: Through March 5, 2004
Base Salary: $2,980.77 per week effective 7/6/01
$3,175.98 per week effective 3/6/02
Performance Bonus: 0%-75% of annual base salary with
20% based on achieving the overall
operating plan and 80% based on
achieving the America's operating
plan
Fringe Benefits: Standard executive fringe benefits
Term of Covenant Not to Compete: 12 months
Non-Compete Payment $1,490.38 per week for 52 weeks
through March 5, 2002
$1,587.99 per week for 52 weeks
effective March 6, 2002
Liquidated Damages: $1,490.38 per week through
March 5, 2002
$1,587.99 per week effective
March 6, 2002
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 6th day of July, 2001.
XXXXX ENTERPRISES, INCORPORATED EXECUTIVE
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxx
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