EXHIBIT 6.5
EMPLOYMENT AGREEMENT
This Employment Agreement (Agreement) is made this 1st day of August, 1998 and
entered into between 1-800-AutoTow, Inc., a Delaware corporation ("Company"),
and Xxxxxxx Xxxxxxx III, ("Employee").
RECITALS
A. Company is a corporation engaged in the business of providing towing and
other services in the transportation industry. Employee is an individual
possessing unique management and operating talents of value to the
Company.
B. Company desires to employ Employee as a Regional Vice President of Company
and in such other capacities as agreed on from time to time in writing by
Employee and Company, and Employee desires to accept such employment, all
on the terms and conditions set forth in this Agreement.
C. Company and Employee each desire to prevent other competitive businesses
from securing Employee's services and utilizing Employee's experience,
background, confidential information and inventions as hereinafter set
forth.
AGREEMENT
In consideration of the foregoing recitals and the covenants and
agreements of the parties contained herein, the parties do hereby agree as
follows:
1. Employment: Company hereby hires Employee to perform the duties and render
the services hereinafter set forth in Section 2, for a period of five (5) years,
commencing August 1, 1998 (the "Employment Term"), subject to earlier
termination as herein provided, and Employee hereby accepts said employment and
agrees to perform said services during the term of this Agreement. This
Agreement may be terminated by the Company prior to the expiration of its
initial five-year term only as set forth below. Unless this Agreement is so
terminated, or unless the Company elects not to renew this Agreement at the end
of its initial five-year term, or any subsequent term, by giving notice to
Employee of such non-renewal at least 90 days prior to the end of such term,
this Agreement shall be automatically renewed on the same terms for successive
one year periods.
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2. Duties: Employee agrees to render to the Company the services as Service Area
Manager of the Company as outlined in Attachment A.
3. Compensation: As compensation for his services to be performed hereunder,
Company shall provide Employee with the following compensation and benefits:
(a) Base Salary: For all services rendered by Employee to Company
hereunder, Employee's base salary shall be $80,000 per year,
which shall commence the date of acquisition of XxXxxx &
Xxxxxxx Inc. by the Company, subject to annual adjustment,
payable in accordance with the Company's payroll practices as
in effect from time to time, and subject to such withholding
as is required by law.
(b) Bonus: In addition to the base salary specified above,
Employee may be paid a bonus which shall be in an amount,
and payable in a manner, to be determined at the sole
discretion of Company.
(c) Vacation: Employee shall be entitled to 2 weeks paid vacation
during the first year of this Agreement and 3 weeks in
subsequent years. If the vacation is not used during the year
earned, it will be lost and not carried forward into
subsequent years.
(d) Life Insurance: Company shall provide a cafeteria plan whereby
the Employee can buy Life Insurance to suit his particular
needs.
(e) Business Expenses: The Company shall reimburse Employee for
all reasonable business expenses incurred by Employee in the
course of performing services for the Company subject to the
Company written guidelines.
(f) Stock Options: Employee shall be granted an option to purchase
4,000 shares of common stock at a price of $2.00 per share, or
if already trading, the closing price of the stock on the day
prior to the effective date of employment. The Options of
Company are subject to the terms and conditions of the stock
option agreement attached hereto as "Attachment B." The terms
and conditions of such stock option and agreement are
incorporated herein by reference.
(g) Other Benefits: Company shall provide Employee with such other
employment benefits, including without limitation, medical
insurance and disability insurance, as is provided by Company
to its other employees.
4. Termination: This Agreement and Employee's employment are subject to
immediate termination at any time as follows:
(a) Death: This Agreement shall terminate immediately upon
Employee's death, in which event the Company's only obligation
shall be payment of all compensation due Employee for services
rendered by Employee prior to the date of his death to
Employee's estate or beneficiary.
(b) Disability: The Company may terminate Employee's employment in
the event that Employee is disabled from performing all
assigned duties under this Agreement due to illness or injury
for a period in excess of three (3) consecutive months, in
which event the Company's only obligation shall be to pay all
compensation due Employee for services rendered by Employee
prior to the date of his termination.
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(c) Termination of Employment With Cause: The Company may
terminate Employee's employment immediately upon written
notice to Employee in the event Employee (1) is convicted of a
felony by a court of competent jurisdiction; (2) commits any
gross misconduct, willful breach, or habitual neglect of his
duties; (3) willfully violates any policy or procedure of the
Company that causes a material adverse effect on the Company;
or (4) uses illegal or controlled substances. In any event,
the Company's sole obligation to Employee shall be payment of
all compensation due Employee for services rendered by
Employee prior to notice of termination under this subsection.
The Company shall give thirty (30) days notice to cure any
conduct set forth herein unless the Board of Directors, in its
sole discretion, determines that a cure is not deemed possible
or appropriate.
(d) Termination Without Cause: The Company in its sole discretion
may terminate Employee's employment without cause or prior
warning immediately upon written notice to Employee in which
event the Company's only obligation shall be to pay all
compensation owing for services rendered by Employee prior to
notice of termination, and to continue paying Employee's base
salary for the remainder of the contract. Any accrued bonus
shall be calculated on a period-to-date basis and prorated to
date of termination. All stock options which have not vested
at the time of termination without cause shall be immediately
vested. All remaining Company benefits will be discontinued at
the time of termination.
(e) Resignation: Upon resignation, Employee shall only be entitled
to compensation earned as of the date of resignation. Any
stock options that have not been vested as of the date of
resignation shall be forfeited. Employee shall give 30 days
notice of resignation in order for an appropriate transition.
Employee agrees to cooperate with the Company upon reasonable
request during the 30 day period and shall receive salary
during this period of transition.
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(f) Company's Sole Obligation: In the event of any termination
pursuant to this Section, the payment of the amounts set forth
in subsections (a) through (e) above as applicable constitute
the sole obligations of the Company and are in lieu of any
damages or other compensation that Employee may claim in
connection with employment with the Company.
(g) Return of Company Property: Upon termination of employment for
any reason, Employee shall immediately return to the Company
without condition all files, records, keys, and other property
of the Company.
5. Confidentiality: Employee acknowledges and agrees that Employee has been
entrusted with trade secrets and proprietary information regarding the products,
processes, methods of manufacture and delivery, know-how, designs, formula, work
in progress, research and development, computer software and data bases,
copyrights, trademarks, patents, marketing techniques, and future business
plans, as well as customer lists and information concerning the identity, needs,
and desires of actual and potential customers of the Company and its
subsidiaries, joint ventures, partners, and other affiliated persons and
entities ("Confidential Information"), all of which derive significant economic
value from not being generally known to others outside the Company.
(a) During the entire term of Employee's employment with the
Company, and for two (2) years thereafter, Employee shall not
disclose or exploit any Confidential Information except as
necessary in the performance of Employee's duties under this
Agreement or with the Company's express written consent.
(b) Employee acknowledges and agrees that any violation of this
Section would cause immediate irreparable damage to the
Company, and that it shall be extremely difficult or
impossible to determine the amount of damage caused to the
Company. Employee therefore consents to the issuance of a
temporary restraining order, preliminary and permanent
injunction, and other appropriate relief to restrain any
actual or threatened violation of this Section, without
limiting any other remedies the Company may have. Employee
agrees to the sole and exclusive jurisdiction of the Circuit
Court for Palm Beach County, Florida should any dispute arise
out of the employment relationship as defined herein.
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6. Developments: Any and all patents, copyrights, trademarks, inventions,
discoveries, development, or trade secrets developed or perfected by Employee
during or as the result of Employee's employment with the Company shall
constitute the sole and exclusive property of the Company. Employee shall
disclose all such matters to the Company, assign all right, title and interest
Employee may have in copyright, trademark, or other legal protection.
7. Non-Competition: Employee covenants and agrees that while in the employment
of Company or while receiving severance payments in lieu of active employment,
and for two (2) years after the termination or expiration of this Agreement or
the receipt of the Employee's last severance payment, Employee shall not;
(a) for his own account or either as agent, consultant, servant or
employee, or as a shareholder of any corporation or member of
any firm, own, manage, operate, join, control, or participate
in the ownership, management, operation or control of any
individual, or that division or part of any entity or business
that is in the vehicle towing, transport, salvage or auction
businesses, within one hundred (100) miles of the Company or
any affiliated company operation;
(b) call upon any person who is, at that time, an employee of the
Company or any affiliated company in a managerial capacity for
the purpose or with the intent of enticing such employee away
from or out of the employ of the Company or any affiliated
company;
(c) call upon any person or entity which is, at that time or which
has been, within one (1) year prior to that time, a customer
of the Company, or any affiliated company for the purpose of
soliciting or selling products or services in direct
competition with the Company, or any affiliated Company;
(d) call upon any prospective acquisition candidate, on his behalf or on behalf
of any competitor in the vehicle towing or transport business; or
(e) disclose customers, whether in existence or proposed, of the
Company or any affiliated company, to any person, firm,
partnership, corporation or business for any reason or purpose
whatsoever excluding disclosure to the Company or any
affiliated company.
(f) In the event of an actual or threatened breach by Employee of
any of the provisions in Paragraph 7(a) hereof, Company shall
be entitled to an injunction restraining Employee from the
prohibited conduct without the necessity of establishing
irreparable injury to Company unless required under Florida
law. If a court of competent jurisdiction should hold that the
duration and/or scope (geographic or otherwise) of the
covenants contained in Paragraph 7(a) hereof are in violation
of Florida law, then, to the extent permitted under Florida
law, the Circuit Court for Palm Beach County shall enforce all
such covenants (geographic and otherwise) to the fullest
extent permitted under Florida law and the parties hereto
agree to be bound by same. Nothing herein stated shall be
construed as prohibiting Company from pursuing any other
remedies available to it for such breach or threatened breach,
including the recovery of damages from Employee. In any action
or proceeding to enforce the provisions of this Paragraph 7,
or seeking damages for breach or threatened breach of this
Paragraph 7, the prevailing party shall be reimbursed by the
other party for all costs incurred in such action or
proceeding including, without limitation, all court costs and
filing fees, and all reasonable attorneys' fees, incurred
either at the trial level or at all appellate levels. Such
reimbursement, if any, shall be paid within thirty (30)
calendar days after the rendition of a final order in such
action or proceeding.
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(g) The existence of any claim or cause of action by Employee
against Company, shall not constitute a defense to the
enforcement by Company of the foregoing restrictive covenant.
(h) In the event Company obtains an injunction against Employee
arising from Employee's violation of any of the covenants set
forth in this Paragraph 7, then all of the terms of and
covenants in this Paragraph 7 shall automatically be extended
for a period of one (1) year, with such extension period
commencing, without Order of Court or any writing or other
action by the parties hereto, on the date that an injunction
Order is entered against Employee in any such action or
proceeding to enforce the provisions of this Paragraph 7.
(i) The covenants of this Paragraph 7 will not pertain to Employee
if the Company ceases business and thereby results with the
Employee's employment being discontinued.
8. Conflict of Interest: During the term of this Agreement, Employee shall
devote Employee's full working time, ability, and attention to the business of
the Company, and shall not accept other employment or engage in any other
outside business activity which interferes with the performance of Employee's
duties and responsibilities under this Agreement or which involves actual or
potential competition with the business of the Company, except with the express
written consent of the Company.
9. Company's Right to Disclose: During Employee's employment hereunder and at
all times subsequent thereto, Employee hereby grants to Company the right to
notify all future employers of Employee of the non-competition restrictions on
Employee contained in this Agreement, and Employee hereby holds harmless and
indemnifies Company from any liability to Company which may arise from any such
disclosure.
10. Assignment: This Agreement may not be assigned by Employee, but may be
assigned by the Company to any successor in interest to its business. This
Agreement shall bind and inure to the benefit of the Company's successors and
assigns, as well as Employee's heirs, executors, administrators, and legal
representatives.
11. Notices: All notices and other communications under this Agreement shall be
in writing and shall be delivered personally or mailed by registered mail,
return receipt requested and shall be deemed given when so delivered or mailed,
to a party at such address as a party may, from time to time, designate in
writing to the other party. The initial addresses for notices are as follows:
Employer: 1-800-AutoTow, Inc.
0000 X. Xxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Employee: Xxxxxx X. XxXxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
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12. Severability: In the event any provision of this Agreement is void or
unenforceable, the remaining provisions shall continue in full force and effect.
13. Waiver: No waiver of any breach of this Agreement shall constitute a waiver
of any subsequent breach.
14. Applicable Law: This Agreement shall be construed according to the laws of
the State of Florida. In the event action be brought to enforce any provisions
of this Agreement in the Circuit Court for Palm Beach County, the prevailing
party shall be entitled to reasonable attorneys' fees as fixed by the court.
15. Headings: The paragraph and subparagraph headings herein are for convenience
only and shall not affect the construction hereof.
16. Miscellaneous:
(a) The Employee acknowledges and agrees that the Company's remedy
at law for any breach of any of his obligations hereunder
would be inadequate, and agrees and consents that temporary
and permanent injunctive relief may be granted in any
proceeding that may be brought to enforce any provision of
this Agreement without the necessity of proof of actual damage
and without any bond or other security being required. Such
remedies shall not be exclusive and shall be in addition to
any other remedy, which the Company may have.
(b) This Agreement constitutes the entire Agreement between the
parties regarding the above matters, and each party
acknowledges that there are no other written or verbal
Agreements or understandings relating to such subject matter
between the Employee and the Company or between the Employee
and any other individuals or entities other than those set
forth herein. No amendment to this Agreement shall be
effective unless it is in writing and signed by both the
parties hereto. All prior written or oral agreements
concerning the relationship between the Company and the
Employee are merged in this agreement and are of no legal
effect.
(c) This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original for all
purposes hereof.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands on
this 1st day of August, 1998.
"Company" "Employee"
1-800-AutoTow, Inc. Xxxxxxx Xxxxxxx III
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx Xxxxxxx
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Xxxxxx X. Xxxxxxx Xxxxxxx Xxxxxxx
Vice President Employee
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