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Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is dated as of this 28th day of July, 1999,
between xxxxxxxxxx.xxx, inc., a Florida corporation (the "Corporation") and
Xxxxxxx Xxxxxx (the "Executive").
WITNESSETH
WHEREAS, the Executive is presently the President of the Corporation
who, in accordance with the policies established by the Board of Directors of
the Corporation (the "Board"), develops and oversees the implementation of the
goals and objectives of the Corporation; and
WHEREAS, the Executive and the Corporation entered into an employment
agreement effective May 1, 1999 (the "Prior Agreement"); and
WHEREAS, the Executive has been appointed to and has accepted the
position of Chief Executive Officer of Corporation effective July 28, 1999 and
the Executive and the Corporation desire to amend the Prior Agreement to reflect
respective duties and responsibilities of the Exeucutive and the Corporation;
and
WHEREAS, the Corporation desires to be ensured of the Executive's
continued active participation in the business of the Corporation; and
WHEREAS, in order to induce the Executive to remain in the employ of
the Corporation and in consideration of the Executive's agreement to remain in
the employ of the Corporation pursuant to the terms and conditions hereof, the
parties desire to specify the terms and conditions of Executive's continuing
employment with the Corporation and to provide certain severance benefits which
shall be due the Executive in the event that his employment with the
Corporation is terminated under specified circumstances;
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. DEFINITIONS. The following words and terms shall have the meanings
set forth below for the purposes of this Agreement:
(a) Affiliates. "Affiliates" of the Corporation, or a person
"affiliated" with the Corporation, are any persons or entities which, directly
or indirectly, through one or more intermediaries, controls or are controlled
by or are under common control with, the persons or entities specified.
(b) Average Annual Compensation. "Average Annual
Compensation" means the average level of compensation paid to the Executive by
the Corporation or any Subsidiary thereof during the most recent three taxable
years preceding the Date of Termination (or such shorter period as the
Executive was employed), including Base Salary and bonuses or other
compensation under any employee benefit plans of the Corporation.
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(c) Base Salary. "Base Salary" shall have the meaning set
forth in Section 3(a) hereof.
(d) Cause. Termination of the Executive's employment for
"Cause" shall mean termination because of willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule or regulation (other than traffic
violations or similar offenses) or final cease-and-desist order or material
breach of any provision of this Agreement. For purposes of this paragraph, no
act or failure to act on the Executive's part shall be considered "willful"
unless done, or omitted to be done, by the Executive not in good faith and
without reasonable belief that the Executive's action or omission was in the
best interest of the Corporation. Cause shall be determined in good faith by
the affirmative vote of a majority of the whole Board of Directors (excluding
the Executive) after the Executive has been provided the opportunity to make a
presentation to the Board which presentation to the Board may be with counsel.
(e) Change in Control of the Corporation. "Change in Control
of the Corporation" shall mean a change in control of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended
("Exchange Act"), or any successor thereto, whether or not the Corporation is
registered under Exchange Act; provided that, without limitation, such a change
in control shall be deemed to have occurred if (i) any "person" (as such term
is used in Sections 13(d) and 14(d) of the Exchange Act) other than Perfumania,
Inc., the Executive or the Corporation, is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Corporation representing 25% or more of the combined voting
power of the Corporation's then outstanding securities; or (ii) during any
period of twenty-four consecutive months, individuals who, at the beginning of
such period constitute the Corporation's Board of Directors, cease for any
reason to constitute at least a majority thereof unless the election, or the
nomination for election by stockholders, of each new director was approved by a
vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period.
(f) Code. "Code" shall mean the Internal Revenue Code of
1986, as amended.
(g) Date of Termination. "Date of Termination" shall mean (i)
if the Executive's employment is terminated for Cause, Disability or for
Retirement, the date specified in the Notice of Termination, and (ii) if the
Executive's employment is terminated for any other reason, the date on which a
Notice of Termination is given or as specified in such Notice.
(h) Disability. Termination by the Corporation of the
Executive's employment based on "Disability" shall mean termination because of
any physical or mental impairment which qualifies the Executive for disability
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benefits under the applicable long-term disability plan maintained by the
Corporation or any subsidiary or, if no such plan applies, which would qualify
the Executive for disability benefits under the Federal Social Security System.
(i) Good Reason. Termination by the Executive of the
Executive's employment for "Good Reason" shall mean termination by the
Executive following a Change in Control of the Corporation based on:
(i) Without the Executive's express written consent,
the failure to elect or to re-elect or to appoint or to re-appoint the
Executive to the office of President and Chief Executive Officer of the
Corporation or a material adverse change made by the Corporation in the
Executive's functions, duties or responsibilities as President and Chief
Executive Officer of the Corporation;
(ii) Without the Executive's express written
consent, a material reduction (i.e., 10% or more) by the Corporation in the
Executive's Base Salary as the same may be increased from time to time or,
except to the extent permitted by Section 3(b) hereof, a material reduction in
the package of fringe benefits provided to the Executive, taken as a whole;
(iii) Without the Executive's express written
consent, the Corporation requires the Executive to work in an office which is
more than 45 miles from the location of the Corporation's current principal
executive office, except for required travel on business of the Corporation to
an extent substantially consistent with the Executive's business travel
obligations prior to the Change in Control;
(iv) Any purported termination of the Executive's
employment for Cause, Disability or Retirement which is not effected pursuant
to a Notice of Termination satisfying the requirements of paragraph (k) below
and Section 5 hereof; or
(v) The failure by the Corporation to obtain the
assumption of and agreement to perform this Agreement by any successor as
contemplated in Section 13 hereof.
(j) IRS. "IRS" shall mean the Internal Revenue Service.
(k) Notice of Termination. Any purported termination of the
Executive's employment by the Corporation for any reason, including without
limitation for Cause, Disability or Retirement, or by the Executive for any
reason, including without limitation for Good Reason, shall be communicated by
a written "Notice of Termination" to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" shall mean a dated notice which (i)
indicates the specific termination provision in this Agreement relied upon,
(ii) sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision
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so indicated, (iii) specifies a Date of Termination, which shall be not less
than thirty (30) nor more than ninety (90) days after such Notice of
Termination is given, except in the case of the Corporation's termination of
Executive's employment for Cause for which the Date of Termination may be the
date of the notice; and (iv) is given in the manner specified in Section 14
hereof.
(l) Retirement. "Retirement" shall mean voluntary termination
by the Executive in accordance with the Corporation's retirement policies,
including early retirement, generally applicable to the Corporation's salaried
employees.
(m) Subsidiary. "Subsidiary" shall mean any subsidiary of the
Corporation.
2. TERM OF EMPLOYMENT.
(a) The Corporation hereby employs the Executive as President
and Chief Executive Officer, and Executive hereby accepts said employment and
agrees to render such services to the Corporation, on the terms and conditions
set forth in this Agreement. Unless extended as provided in this Section 2,
this Agreement shall terminate five (5) years after the date first above
written; provided, however, this Agreement shall be automatically renewed on
its anniversary date ("Annual Renewal Date") each year for one (1) additional
year unless either party shall give written notice of non-renewal, in
accordance with Section 14 hereof to the other party at least sixty (60) days
prior to an Annual Renewal Date, in which event this Agreement shall continue
in effect for a term ending on the Annual Renewal Date immediately following
such notice. Reference herein to the term of this Agreement shall refer both to
the initial term and any successive term as the context requires.
(b) During the term of this Agreement, the Executive shall
perform such executive services for the Corporation as is consistent with his
title of President and Chief Executive Officer and as directed, from time to
time, by the Board of Directors, including but not limited to, the supervision
of the Corporations day-to-day operations. The Executive shall devote his full
time, attention and energies to the business of the Corporation and shall not,
during the term hereof (as defined in Section 2(a)), be employed or involved in
any other business activity, whether or not such activity is pursued for gain,
profit or other pecuniary advantage, except for (i) volunteer services for or
on behalf of such religious, educational, non-profit and/or other eleemosynary
organization as Executive may wish to serve, (ii) service as a director of not
more than three (3) for-profit business activities, and (iii) such other
activities as may be specifically approved by the Board of Directors (without
the Executive's participation or vote). This restriction shall not, however,
preclude the Executive from employment in any capacity with affiliates of the
Corporation, nor shall any remuneration from such affiliates be considered in
calculating the Base Salary (as defined in Section 3(a)) due to Executive
hereunder.
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3. COMPENSATION AND BENEFITS.
(a) For services rendered hereunder by the Executive, the
Corporation shall compensate and pay Executive for his services during the term
of this Agreement at a minimum base salary of Two Hundred Thousand ($200,000)
Dollars per year ("Base Salary"), which may be increased from time to time in
such amounts as may be determined by the Board of Directors of the Corporation.
In addition to his Base Salary, the Executive shall receive during the term of
this Agreement such bonus payments as may be determined by the Board of
Directors of the Corporation. In addition to any bonus paid or should the Board
of Directors not provide any bonus to Executive for any year, the Executive's
Base Salary shall automatically be increased by the amount of the prior year's
increase in the "Consumer Price Index for all Urban Consumers (1982-84=100),
Miami, Florida Area, All Items," as published by the United States Department
of Labor, Bureau of Labor Statistics (the "CPI").
(b) During the term of the Agreement, Executive shall be
entitled to participate in and receive the benefits of any pension or other
retirement benefit plan, the 401(k) plan, profit sharing, stock option,
employee stock ownership, or other plans, benefits and privileges given to
employees and executives of the Corporation, to the extent commensurate with
his duties and responsibilities, as fixed by the Board of Directors of the
Corporation. The Corporation and the Executive shall enter into a stock option
agreement dated as of the date of this Agreement pursuant to which the
Executive shall be granted an option to purchase up to 225,000 shares of common
stock of the Corporation upon terms set forth in the stock option agreement.
The Corporation shall not make any changes in such plans, benefits or
privileges which would adversely affect Executive's rights or benefits
thereunder, unless such change occurs pursuant to a program applicable to all
executive officers of the Corporation and does not result in a proportionately
greater adverse change in the rights of or benefits to Executive as compared
with any other executive officer of the Corporation. Nothing paid to Executive
under any plan or arrangement presently in effect or made available in the
future shall be deemed to be in lieu of the base salary payable to Executive
pursuant to Section 3(a) hereof.
(c) During the term of this Agreement, Executive shall be
entitled to five (5) weeks paid vacation in each calendar year to be taken and
determined in accordance with the vacation policies and procedures as
established from time to time by the Board of Directors of the Corporation.
Executive shall also be entitled to all paid holidays to which similarly
situated executives and key management employees of the Corporation are
entitled. The Executive shall be entitled to paid leave due to physical illness
in each calendar year to be taken and determined in accordance with the
policies and procedures as established from time to time by the Board of
Directors. Executive shall not be entitled to receive any additional
compensation from the Corporation for failure to take a vacation, or failure to
use "sick days," nor shall Executive be able to accumulate unused vacation or
"sick" time from one year to the next, except to the extent authorized by the
Board of Directors of the Corporation.
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(d) The Corporation shall provide the Executive with
secretarial and support staff and furnished offices and conference facilities
in Miami, Florida, and in such other location, if any, in which the Executive
hereafter agrees to perform services on behalf of the Corporation, all of which
shall be consistent with the Executive's duties as the President and Chief
Executive Officer of the Corporation and sufficient for the efficient
performance of those duties. Nothing in this Agreement shall be construed to
require the Executive to perform or discharge his duties to the Corporation at
any office or location outside of Miami, Florida.
4. EXPENSES. The Corporation shall reimburse Executive or otherwise
provide for or pay for all reasonable expenses incurred by Executive in
furtherance of, or in connection with the business of the Corporation,
including, but not by way of limitation, traveling expenses, and all reasonable
entertainment expenses (whether incurred at the Executive's residence, while
traveling or otherwise), subject to such reasonable documentation and other
limitations as may be established by the Board of Directors of the Corporation.
5. TERMINATION.
(a) The Corporation shall have the right, at any time upon
prior Notice of Termination, to terminate the Executive's employment hereunder
for any reason, including without limitation termination for Cause, Disability
or Retirement, and Executive shall have the right, upon prior Notice of
Termination, to terminate his employment hereunder for any reason.
(b) In the event that (i) Executive's employment is
terminated by the Corporation for Cause or (ii) Executive terminates his
employment hereunder other than for Good Reason, Executive shall have no right
pursuant to this Agreement to compensation or other benefits for any period
after the applicable Date of Termination.
(c) In the event that (i) Executive's employment is
terminated by the Corporation other than for Cause, Disability, Retirement or
the Executive's death, or (ii) such employment is terminated by the Executive
due to a material breach of this Agreement by the Corporation, which breach has
not been cured within fifteen (15) days after a written notice of
non-compliance has been given by the Executive to the Corporation, then the
Corporation shall, subject to the provisions of Section 6 hereof, if
applicable,
(A) Pay to the Executive, in a lump sum or in
thirty-six (36) equal monthly installments (at the Executive's option)
beginning with or on the first business day of the month following the Date of
Termination, a cash severance amount equal to three (3) times the Executive's
Average Annual Compensation, and
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(B) Maintain and provide for a period ending at the
earlier of (i) the expiration of the remaining term of employment pursuant
hereto prior to the Notice of Termination or (ii) the date of the Executive's
full-time employment by another Corporation, at no cost to the Executive, the
Executive's continued participation in all group insurance, life insurance,
health and accident, disability and other employee benefit plans, programs and
arrangements in which the Executive was entitled to participate immediately
prior to the Date of Termination (other than stock option and restricted stock
plans of the Corporation), provided that in the event that the Executive's
participation in any plan, program or arrangement as provided in this
subparagraph (B) is barred or during such period any such plan, program or
arrangement is discontinued or the benefits thereunder are materially reduced,
the Corporation shall arrange to provide the Executive with benefits
substantially similar to those which the Executive was entitled to receive
under such plans, programs and arrangements immediately prior to the Date of
Termination.
(d) In the event that Executive's employment is (i)
terminated by the Corporation within six months of a Change-in-Control of the
Corporation or (ii) terminated by the Executive for Good Reason subsequent to
Change in Control, then the Corporation shall:
(A) Pay to the Executive, in a lump sum payable
within five business days following the Date of Termination, a cash severance
amount equal to three (3) times the Executive's Average Annual Compensation,
and
(B) Maintain and provide for a period ending at the
earlier of (i) the expiration of the remaining term of employment pursuant
hereof prior to the Notice of Termination or (ii) the date of the Executive's
full-time employment by another Corporation, at no cost to the Executive, the
Executive's continued participation in all group insurance, life insurance,
health and accident, disability and other employee benefit plans, programs and
arrangements in which the Executive was entitled to participate immediately
prior to the Date of Termination (other than stock option and restricted stock
plans of Corporation), provided that in the event the Executive's participation
in any plan, program or arrangement is discontinued or the benefit thereunder
are materially reduced, the Corporation shall arrange to provide the Executive
with benefits substantially similar to those which the Executive was entitled
to receive under such plans, programs and arrangements immediately prior to the
Date of Termination.
(e) All unvested stock options granted to Executive shall
immediately vest upon termination of Executive's employment under Section 5(c)
or Section 5(d) of the Agreement.
6. ADDITIONAL BENEFITS UNDER CERTAIN CIRCUMSTANCES.
(a) If the Executive becomes liable, in any taxable year, for
the repayment of an excise tax under Section 4999 of the Code, or any successor
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provision of the Code, on account of any payments to the Executive pursuant to
Section 5, and the Corporation chooses not to contest the liability or has
exhausted all administrative and judicial appeals contesting the liability, the
Corporation shall pay the Executive (i) an amount equal to the excise tax for
which the Executive is liable under Section 4999 of the Code, (ii) the federal,
state, and local income taxes, and interest if any, for which the Executive is
liable on account of the payments pursuant to item (i), and (ii) any additional
excise tax under Section 4999 of the Code and any federal, state and local
income taxes for which the Executive is liable on account of payments made
pursuant to items (i) and (ii).
(b) This Section 6(b) applies if the amount of payments to
the Executive under Section 6(a) has not been determined with finality by the
exhaustion of administrative and judicial appeals. In such circumstances, the
Corporation and the Executive shall, as soon as practicable after the event or
series of events have occurred giving rise to the imposition of the excise tax,
cooperate in determining the amount of the Executive's excise tax liability for
purposes of paying the estimated tax. The Executive shall thereafter furnish to
the Corporation or its successors a copy of each tax return which reflects a
liability for an excise tax under Section 4999 of the Code at least thirty (30)
days before the date on which such return is required to be filed with the IRS.
The liability reflected on such return shall be dispositive for the purposes
hereof unless, within twenty (20) days after such notice is given, the
Corporation furnishes the Executive with a letter of the auditors or tax
advisor selected by the Corporation indicating a different liability or that
the matter is not free from doubt under the applicable laws and regulations and
that the Executive may, in such auditor's or advisor's opinion, cogently take a
different position, which shall be set forth in the letter with respect to the
payments in question. Such letter shall be addressed to the Executive and state
that he is entitled to rely thereon. If the Corporation furnishes such a letter
to the Executive, the position reflected in such letter shall be dispositive
for purposes of this Agreement, except as provided in Section 6(c) below.
(c) Notwithstanding anything in this Agreement to the
contrary, if the Executive's liability for the excise tax under Section 4999 of
the Code for a taxable year is subsequently determined to be less than the
amount paid by the Corporation pursuant to Section 6(a), the Executive shall
repay the Corporation at the time that the amount of such excise tax liability
is finally determined, the portion of such income and excise tax payments
attributable to the reduction (plus interest on the amount of such repayment at
the rate provided on Section 1274(b)(2)(B) of the Code) and if the Executive's
liability for the excise tax under Section 4999 of the Code for a taxable year
is subsequently determined to exceed the amount paid by the Corporation
pursuant to Section 6(a), the Corporation shall make an additional payment of
income and excise taxes in the amount of such excess, as well as the amount of
any penalty and interest assessed with respect thereto at the time that the
amount of such excess and any penalty and interest is finally determined.
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7. MITIGATION; EXCLUSIVITY OF BENEFITS.
(a) The Executive shall not be required to mitigate the
amount of any benefits hereunder by seeking other employment or otherwise, nor
shall the amount of any such benefits be reduced by any compensation earned by
the Executive as a result of employment by another Corporation after the Date
of Termination or otherwise.
(b) The specific arrangements referred to herein are not
intended to exclude any other benefits which may be available to the Executive
upon a termination of employment with the Corporation pursuant to employee
benefit plans of the Corporation or otherwise.
8. WITHHOLDING. All payments required to be made by the Corporation
hereunder to the Executive shall be subject to the withholding of such amounts,
if any, relating to tax and other payroll deductions as the Corporation may
reasonably determine should be withheld pursuant to any applicable law or
regulation.
9. NON-SOLICITATION OF CUSTOMERS AND EMPLOYEES.
(a) The Executive hereby acknowledges and recognizes the
highly competitive nature of the business of online sales of fragrances and
fragrance related products and accordingly agrees that, during the term of this
Agreement and, in consideration of the receipt of any payment pursuant to this
Agreement, for a period of one year following the date of termination of the
Executive's employment under this Agreement, unless otherwise agreed to in
writing by the Corporation, the Executive shall not, either directly or
indirectly, in any manner or capacity, whether as principal, agent, partner,
officer, director, employee, joint venturer, salesman, or corporate shareholder
or otherwise for the benefit of any Person (as defined below), (i) render
services to, or solicit the rendering of services to, any Person in competition
with the business of the Corporation, which then is, or at any time during a
period of one year prior to the termination of the Executive's employment under
this Agreement (the "Termination Date"), was a Customer (as defined below) of
the Corporation, or (ii) solicit the rendering of services to any Person of any
kind whatsoever which is then or has been at any time during a period of one
year prior to the Termination Date a Customer, employee, salesperson, agent or
representative of the Corporation in any manner which interferes or might
interfere with the relationship of the Corporation with such Person, or in an
effort to obtain such Person as a customer, supplier, employee, salesperson,
agent or representative of any business in competition with the Corporation, or
(iii) for a period of one year following the Termination Date, hire or
participate in the hiring by any Person of an employee of the Corporation. In
order to assure strict compliance with the foregoing, and in recognition of the
compensation to be paid by Corporation to Executive on the termination of this
Agreement, Executive agrees to notify Corporation, in writing, fourteen (14)
days prior to undertaking any employment or services within the said time
period, regardless of the nature thereof, of the name and address of any such
intended Corporation, proposed job title, proposed job description and salary,
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and the business of the prospective Corporation. If, within such fourteen (14)
day period, Corporation shall object on reasonable grounds to such anticipated
employment in writing to Executive, Executive agrees not to accept the same or
in any manner directly or indirectly render services to any such prospective
Corporation.
"Person" means any individual, trust, partnership,
corporation, limited liability company, association, or other legal entity.
"Customer" means any Person with which the Corporation or any
subsidiary is currently engaged to provide goods or services, has been engaged
to provide goods or services within twelve (12) months prior to the Termination
Date, or actively marketed, discussed a project with, negotiated with, provided
a bid to or otherwise communicated with in an effort to obtain an engagement to
provide goods or services sold by the Corporation or any subsidiary within
twelve (12) months prior to the Termination Date.
(b) It is expressly understood and agreed that although the
Executive and the Corporation consider the restrictions contained in Section
9(a) of this Agreement reasonable for the purpose of preserving for the
Corporation its good will and other proprietary rights, if a final judicial
determination is made by a court having jurisdiction that the time or territory
or any other restriction contained in Section 9(a) of this Agreement is an
unreasonable or otherwise unenforceable restriction against the Executive, the
provisions of Section 9(a) of this Agreement shall not be rendered void but
shall be deemed amended to apply as to such maximum time and territory and to
such other extent as such court may judicially determine or indicate to be
reasonable.
(c) Notwithstanding the foregoing, the Executive shall not be
subject to the prohibition contained in this Section 9 in the event the
Executive is terminated following a Change in Control of the Corporation
provided that (i) the Executive is subsequently employed by Perfumania, Inc. or
Xxxxxx Xxxxxxxxxx, Inc. and (ii) neither Perfumania, Inc. nor Parlux Fragrance,
Inc. is engaged directly in the business of selling fragrances or fragrance
related products online on a retail or wholesale basis.
10. DISCLOSURE OF CONFIDENTIAL INFORMATION. The Executive acknowledges
that the Corporation's trade secrets, as they may exist from time to time, and
confidential information concerning its products, programs, technical
information, procurement and sales activities and procedures, identity of
customers and potential customers, business plans, promotion and pricing
techniques, and credit and financial data concerning customers are valuable,
special and unique assets of the Corporation. In light of the highly
competitive nature of the industry in which the Corporation's business is
conducted, the Executive agrees that all knowledge and information described in
the preceding sentence not in the public domain and heretofore or in the future
obtained by the Executive shall be considered confidential information.
Executive agrees that he will not disclose any or such secrets, processes or
information to any Person or other entity for any reason or purpose whatsoever,
except as necessary in the performance of his duties as an employee of or
consultant to the Corporation and then only upon a written confidentiality
agreement in such form and content as requested by the Corporation from time to
time, nor shall the Executive make use of any such secrets, processes or
information (other than information in the public domain) for his own purposes
or for the benefit of himself, any Person or other entity (except the
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Corporation and its subsidiaries) under any circumstances. The provisions
contained in this Section 10 shall also apply to information obtained by the
Executive with respect to any future subsidiary of the Corporation.
11. BUSINESS INFORMATION. Upon the termination of his employment with
the Corporation, Executive (or, as appropriate, his personal representatives)
shall deliver to the Corporation (without retaining copies of the same), all
plans, source codes, designs, customer lists, correspondence, records,
documents, accounts and papers of any description and any other property of the
Corporation within the possession or under the control of Executive (or, as
appropriate, his personal representatives) and relating to the affairs and
business of the Corporation, whether drafted, created or compiled by Executive
or received by Executive from other individuals or entities (whether employees
of or affiliated with the Corporation).
12. REMEDIES. The Executive acknowledges and agrees that the
Corporation's remedy at law for a breach or threatened breach of any of the
provisions of Section 9, Section 10 or Section 11 of this Agreement would be
inadequate and, in recognition of this fact, in the event of a breach or
threatened breach by the Executive of any of the provisions of Section 9,
Section 10 or Section 11 of this Agreement, it is agreed that, in addition to
any remedy at law, the Corporation shall be entitled to, without posting any
bond, (and the Executive agrees not to oppose the Corporation's request) relief
in the nature of specific performance, temporary restraining order, temporary
or permanent injunction, or any other equitable relief or remedy which may then
be available, provided, however, nothing herein shall be deemed to relieve the
Corporation of its burden to prove grounds warranting such relief nor preclude
the Executive from contesting such grounds or facts in support thereof. Nothing
herein contained shall be construed as prohibiting the Corporation form
pursuing any other remedies available to it for such breach or threatened
breach.
13. ASSIGNABILITY. The Corporation shall assign this Agreement and its
rights and obligations hereunder in whole, but not in part, to any corporation
or other entity with or into which the Corporation may hereafter merge or
consolidate or to which the Corporation may transfer all or substantially all
of its assets, if in any such case said corporation or other entity shall by
operation of law or expressly in writing assume all obligations of the
Corporation hereunder as fully as if it had been originally made a party
hereto, but may not otherwise assign this Agreement or its rights and
obligations hereunder. The Executive may not assign or transfer this Agreement
or any rights or obligations hereunder.
14. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
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To the Corporation: Board of Directors
xxxxxxxxxx.xxx, inc.
00000 XX 000xx Xxxx
Xxxxx, Xxxxxxx 00000
With copies to: Xxxxxxxxx Xxxxxxx
0000 Xxxxxx Xxxxxxxxx
Xxxxx 0000
XxXxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
To the Executive: Xxxxxxx Xxxxxx
000 Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
15. AMENDMENT; WAIVER. This Agreement represents the entire agreement
of the parties relating to subject matter hereof. No provisions of this
Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing signed by the Executive and
such officer or officers as may be specifically designated by the Board of
Directors of the Corporation to sign on its behalf. No waiver by any party
hereto at any time of any breach by any other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
16. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Florida without regard to its principles of conflicts of laws.
17. NATURE OF OBLIGATIONS. The obligations of the Corporation
hereunder are unsecured and the Executive represents a general creditor of the
Corporation for compensation which may be due and owing. Nothing contained
herein shall create or require the Corporation to create a trust of any kind to
fund any benefits which may be payable hereunder, and to the extent that the
Executive acquires a right to receive benefits from the Corporation hereunder,
such right shall be no greater than the right of any unsecured general creditor
of the Corporation.
18. INTERPRETATION AND HEADINGS. This Agreement shall be interpreted
in order to achieve the purposes for which it was entered into. The section
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
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19. SEVERABILITY. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect. With
respect to Section 9 of this Agreement, in the event any court of competent
jurisdiction determines that such provisions are unreasonable or contrary to
law with respect to their time or geographic restriction, or both, the parties
hereto authorize such court to substitute restrictions as it deems appropriate
without invalidating such paragraph or this Agreement.
20. COUNTERPARTS. 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 one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
xxxxxxxxxx.xxx, inc.
/s/ Xxxxxxx Xxxxxx
----------------------
Xxxxxxx Xxxxxx
Chief Financial Officer
EXECUTIVE
/s/ Xxxxxxx Xxxxxx
----------------------
Xxxxxxx Xxxxxx
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