EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made as of this 1st day
of January, 1999, between Xxxxxxxx.xxx, Inc., a Florida corporation (the
"Company"), and Xxxx X. Xxxxxx (the "Executive").
WHEREAS, the Board of Directors of the Company (the "Board") recognizes
the Executive's potential contribution to the continued growth and success of
the Company and desires to assure the Company of the Executive's employment in
an executive capacity and to compensate him therefor;
WHEREAS, the Executive desires to commit himself to serve the Company
on the terms herein provided;
WHEREAS, the Company recognizes that circumstances may arise in which a
change of control of the Company occurs, through acquisition or otherwise,
thereby causing a potential conflict of interest between the Company's needs for
the Executive to remain focused on the Company's business, and for the necessary
continuity in management prior to and following a change of control, and the
Executive's reasonable personal concerns regarding future employment with the
Company and economic protection in the event of loss of employment as a
consequence of a change of control;
WHEREAS, the Company and the Executive desire that any proposal for a
change of control of the Company will be considered by the Executive objectively
and with reference only to the best interests of the Company and its
shareholders;
WHEREAS, the Executive will be in a better position to consider the
Company's best interests if the Executive is afforded reasonable economic
security against altered conditions of employment which could result from any
such change of control; and
WHEREAS, the Executive possesses intimate knowledge of the business and
affairs of the Company and has acquired certain confidential information and
data with respect to the Company which the Company desires to protect.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. Certain Definitions. For purposes of this Agreement, the following
words and phrases have the following meanings:
"Affiliate" has the same meaning as "affiliate" in Rule 144(a)
promulgated under the Securities Act of 1933, as amended.
"Beneficial Owner" has the same meaning as "beneficial owner" in Rule
13d-3 promulgated under the Securities Exchange Act of 1934, as amended.
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"Cause" for termination means (i) Executive's conviction of a felony,
(ii) acts of Executive which, in the judgment of the Board, constitute fraud on
the part of Executive, including but not limited to misappropriation or
embezzlement in the performance of duties as an employee of the Company, or
willful engagement in conduct materially injurious to the Company, or (iii)
gross misconduct, including but not limited to the willful failure of Executive
either to (a) obey lawful written instructions of the Board after thirty (30)
days notice in writing of Executive's failure to do so and the Board's intention
to terminate Executive if such failure is not corrected, or (b) correct any
conduct of Executive which constitutes a breach of this Agreement after thirty
(30) days notice in writing of Executive's failure to do so and of the Board's
intention to terminate Executive if such failure is not corrected.
"Change of Control" shall be deemed to have occurred if, after the
effective date of this Agreement,
(a) any one Person (or group of Affiliated Persons or
entities) other than an Excluded Person or an underwriter temporarily
holding securities pursuant to an offer of such securities, becomes a
Beneficial Owner, directly or indirectly, of securities representing
50% or more of the total number of votes that may be cast for the
election of directors of the Company; or
(b) the shareholders of the Company approve, and the Company
consummates, a merger, consolidation or share exchange of the Company
with any other corporation or approve the issuance of voting securities
of the Company in connection with a merger, consolidation or share
exchange of the Company, other than (i) a merger, consolidation or
share exchange which would result in the voting securities of the
Company outstanding immediately prior to such merger, consolidation or
share exchange continuing to represent (either by remaining outstanding
or by being converted into voting securities of the surviving entity or
any parent thereof) at least 50% of the combined voting power of the
voting securities of the Company or such surviving entity or any parent
thereof outstanding immediately after such merger, consolidation or
share exchange, or (ii) a merger, consolidation or share exchange
effected to implement a recapitalization of the Company (or similar
transaction) in which no Person other than an Excluded Person is or
becomes the Beneficial Owner, directly or indirectly, of securities of
the Company representing 50% or more of either the then outstanding
shares of common stock of the Company or the combined voting power of
the Company's then outstanding voting securities; or
(c) the shareholders of the Company approve, and the Company
consummates, an agreement for the sale or disposition by the Company of
all or substantially all of the Company's assets (in one transaction or
a series of related transactions within any period of 24 consecutive
months), other than a sale or disposition by the Company of all or
substantially all of the Company's assets to an entity at least 50% of
the combined voting power of the voting securities of which are owned
by Persons in substantially the same proportions as their ownership of
the Company immediately prior to such sale.
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Notwithstanding the foregoing, no "Change of Control" shall be deemed
to have occurred if there is consummated any transaction or series of integrated
transactions immediately following which the record holders of the common stock
of the Company immediately prior to such transaction or series of transactions
continue to own, directly or indirectly, in the same proportions as their
ownership in the Company, an entity that owns all or substantially all of the
assets or voting securities of the Company immediately following such
transaction or series of transactions.
"Date of Termination" shall mean (i) if the term of this Agreement
expires, the expiration date as specified in Section 2 hereof, (ii) if the
Executive's employment is terminated by his death, the date of his death, (iii)
if the Executive's employment is terminated upon his Retirement, the date of his
Retirement, (iv) if the Executive's employment is terminated as a result of a
disability described in Section 9, the date on which the Executive is terminated
in accordance with Section 9, (v) if the Executive's employment is terminated
pursuant to Sections 8(b), 8(d) or 8(f), the date of the Notice of Termination
(which date shall not precede the date of mailing such Notice of Termination)
and (vi) if the Executive's employment is terminated pursuant to Sections 8(c)
or 8(e), the date specified as the Date of Termination in the Notice of
Termination (which date shall not precede the date of mailing such Notice of
Termination).
"Excluded Person" means Xxxx Xxxxxx, Canaan Equity, L.P., Dominion Fund
III, or Affiliates of any of the foregoing.
"Good Reason" shall be deemed to have occurred if (i) the Company
reduces the Executive's Base Salary other than pursuant to an across the board
reduction for all executives of the Company made necessary by business
conditions in the judgment of the Board of Directors of the Company, (ii) the
Company requires the Executive to relocate more than 50 miles from Broward
County, Florida, (iii) the Company fails to meet its obligations under Section
5, or engages in any other material breach of the terms of this Agreement, (iv)
there is a material adverse change by the Board of the Executive's functions,
duties, authority or responsibilities without the Executive's written consent,
and, as a result of such change, the Executive's position with the Company shall
be or becomes one of less dignity, responsibility, authority or scope.
"Notice of Termination" has the meaning set forth in Section 8(g).
"Person" means any individual, firm, partnership, corporation or other
entity, including any successor (by merger or otherwise) of such entity, or a
group of any of the foregoing acting in concert.
"Retirement" shall be deemed to have occurred if the Executive's
employment terminates at age 62 or older, and if the Executive has accrued 15
years of continuous service with the Company or any Affiliate company.
2. Employment. Unless earlier terminated pursuant to the provisions of
this Agreement, the Company shall employ the Executive for a term of 5 years,
commencing on January 1, 1999. This Agreement shall thereafter automatically
renew annually for successive one year terms unless either the Company or the
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Executive gives written notice to the other at least 90 days prior to the end of
the initial term hereof or any subsequent one-year renewal term, as the case may
be, of the Company's or the Executive's election not to extend this Agreement,
in which event the expiration of the then current term of this Agreement shall
constitute the Date of Termination.
3. Position and Duties. The Executive shall serve as the President and
Chief Executive Officer of the Company and in such additional management
positions as the Board and the Executive may mutually agree. In addition, so
long as the Executive is a member of the Board, he shall be elected as Chairman
of the Board. The Executive shall be accountable only to the Board, and, subject
to the authority of the Board, shall have supervision and control over, and
responsibility for, the general management and operation of the Company. He also
shall have such other powers and duties as may from time to time be prescribed
by the Board, provided that such duties are consistent with the Executive's
position as a president and chief executive officer of a company the size and
type of the Company. The Executive shall devote his entire working time and
efforts to the business and affairs of the Company and shall diligently and
faithfully perform the duties of his office pursuant to this Agreement.
4. Place of Performance. In connection with his employment by the
Company, the Executive shall be based at the Company's principal executive
offices in Broward County, Florida, or such other place as may be mutually
agreed to by the Company and the Executive.
5. Director's Seat. The Company shall nominate the Executive to
continue to serve as a Board member at each annual meeting of the Company's
shareholders occurring during the term of this Agreement.
6. Compensation.
(a) Base Salary. The Executive shall receive during the first
year of his employment hereunder an annual base salary of Three Hundred
Fifty Thousand Dollars ($350,000) (together with any annual increases,
the "Base Salary"). There shall be an annual review for merit by the
Board at which time the Board may increase the Executive's Base Salary.
The Executive's Base Salary shall be payable in periodic installments
in accordance with the Company's usual practice for senior executives
of the Company.
(b) Bonuses. In addition to Base Salary, during the term of
his employment hereunder, the Executive may be paid an annual bonus as
determined from time to time by the Board. The Board will assign the
Executive a percentage of his Base Salary that may be earned as a bonus
(the "Target Award Percentage"). The Target Award Percentage shall
never be less than 55%. The Board also will assign financial
performance targets for the Company by which to measure the Executive's
performance. Each year, the Board will determine a percentage which
reflects the Company's actual financial performance in relation to the
financial performance targets set for the Company ("Percent of Target
Award Earned"). The Executive's bonus will be determined as follows:
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(Target Award Percentage) x (Base Salary) x (Percent of Target
Award Earned)
The amount of any bonus payable to the Executive shall be
determined as promptly as practicable after the determination of the
Company's financial performance for the year, but in any event such
payment will be made not later than 30 days after the Company's receipt
of consolidated audited financial statements, if audited, or if not
audited, not later than April 30 of such year.
(c) Long-term Incentive Compensation. In addition to Base
Salary, the Executive shall be entitled to participate in the Company's
Stock Option Plan, or other similar long-term incentive plan, and may
be granted stock options at least once per year as determined from time
to time by the Board. The Option Agreement evidencing the options
granted pursuant to this Section 6(c) (the "Options") shall contain
customary anti-dilution adjustments to the exercise price and number of
purchasable shares of common stock (e.g., stock splits, reverse splits,
stock dividends).
Notwithstanding any vesting schedule contained in any Option
Agreement evidencing Options, upon termination of the Executive's
employment pursuant to Sections 8(d)or 8(e), the Options shall become
one hundred percent (100%) vested on the Date of Termination. With
respect to non-qualified stock options, the deadline for exercising
such Options under the applicable Option Agreement is hereby amended to
be a date which is the sooner of three years from the Date of
Termination or the end of the option term for exercising such Options
set forth in the Option Agreement.
(d) Expenses. During the term of his employment hereunder, the
Executive shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by him in performing services hereunder
(according to the policies and procedures from time to time established
by the Board for its senior executive officers), provided that the
Executive properly accounts for expenses in accordance with Company
policy.
(e) Fringe Benefits. During the term of his employment, the
Executive shall be entitled to participate in or receive benefits under
all the Company's employee benefits plans and arrangements, including
any retirement plan, stock option plan, profit-sharing plan, savings
plan, health-and-accident plan, disability plan, insurance programs or
other arrangements made available by the Company to its senior
executives, subject to and on a basis consistent with the terms,
conditions and overall administration of such plans and arrangements.
(f) Vacations. The Executive shall be entitled to the number
of paid vacation days in each calendar year determined by the Company
from time to time for its senior executive officers, but not less than
four (4) weeks in any calendar year (prorated in any calendar year
during which the Executive is employed for less than the entire year in
accordance with the number of days in such calendar year during which
he is so employed). The Executive shall also be entitled to all paid
holidays provided by the Company to its senior executive officers.
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(g) Car Allowance. During the term of his employment, the
Executive shall at the Executive's expense maintain an automobile
available for use in connection with the performance of his duties
hereunder and shall be entitled to a car allowance of $1,500 per month.
(h) Insurance. The Company shall obtain, pay for and keep in
force at all times while Executive is employed by the Company (and
thereafter when required by this Agreement), a term life insurance
policy on the life of the Executive with a death benefit not less than
the greater of (i) four (4) times the Base Salary or (ii) $1,500,000;
provided, that if the Executive is not insurable at the insurer's
lowest rates for healthy, non-smoking males of the Executive's age (the
"Non-Rated Premiums"), then the Company shall obtain and pay for an
insurance policy on the life of the Executive in the face amount
obtainable for such Non-Rated Premiums. The Executive shall have the
exclusive right to designate the beneficiaries of any life insurance
policy provided by the Company hereunder and to change the
beneficiaries from time to time. Such policy and the proceeds and cash
value thereof, if any, shall be the sole property of the Executive and
the Company shall not retain any beneficial interest therein. Upon
termination of the Executive's employment by the Company for Cause,
upon a disability described in Section 9, as a result of his
Retirement, or by the Executive or the Company pursuant to notice under
Section 2, the Company's obligation to pay the premiums on such
insurance shall cease; in all other events the premiums shall be paid
for eighteen (18) months following the Date of Termination.
7. Unauthorized Disclosure. During the period of his employment
hereunder and following termination of his employment, the Executive shall not,
without the written consent of the Board or a person authorized thereby,
disclose to any Person, other than an employee of the Company or a Person to
whom disclosure is reasonably necessary or appropriate in connection with the
performance by the Executive of his duties as a senior executive of the Company,
any material confidential information obtained by him while in the employ of the
Company with respect to any of the Company's products, improvements, formulas,
designs or styles, processes, customers, computer software and systems, computer
programming or methods of marketing, the disclosure of which would be materially
damaging to the Company; provided, however, that confidential information shall
not include any information known generally to the public (other than as a
result of unauthorized disclosure by the Executive) or any information of a type
not otherwise considered confidential by Persons engaged in the same business or
a business similar to that conducted by the Company. Executive shall have no
obligation hereunder to keep confidential any confidential information if and to
the extent disclosure of any thereof is specifically required by law; provided,
however, that in the event disclosure is required by applicable law, Executive
shall provide the Company with prompt notice of such requirement, prior to
making any disclosure, so that the Company may seek an appropriate protective
order.
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8. Termination.
(a) Death and Retirement. The Executive's employment hereunder
shall terminate upon his death. The Executive's employment hereunder
shall terminate upon his Retirement.
(b) Termination by the Company for Cause. The Company may
terminate the Executive's employment hereunder at any time for Cause by
delivering a Notice of Termination to the Executive.
(c) Termination by the Company without Cause. The Company may
terminate the Executive's employment hereunder for any reason by
delivering a Notice of Termination to the Executive at least 30 days
prior to the Date of Termination.
(d) Termination by the Executive for Good Reason Following
Change of Control. The Executive may terminate his employment hereunder
for Good Reason any time within two years following a Change of Control
by delivering a Notice of Termination to the Company.
(e) Termination by the Executive Following Change of Control.
The Executive may terminate his employment hereunder for any reason any
time after the date which is 120 days after the date of a Change of
Control, by delivering a Notice of Termination to the Company at least
30 days prior to the Date of Termination.
(f) Termination by the Executive for Good Reason. Executive
may terminate his employment hereunder for Good Reason at any time by
delivering a Notice of Termination to the Company.
(g) Notice of Termination. Any termination by the Company
pursuant to subsections (b) or (c) of this Section 8, and any
termination by the Executive pursuant to subsections (d), (e) or (f) of
this Section 8, shall be communicated by a written notice delivered by
certified mail, return receipt requested, within the appropriate time
periods, if any, specified by such subsections, and such Notice of
Termination shall indicate the specific termination provision in this
Agreement relied upon. If the termination is pursuant to subsections
(b) or (d) of this Section 8, the Notice of Termination also shall set
forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment under the
provision so indicated.
9. Disability. If a physician reasonably acceptable to the Executive
determines in writing that the Executive is incapacitated due to physical or
mental illness, and if as a result the Executive is incapable of performing his
duties hereunder on a full-time basis for the Disability Period (as defined
below), then the Company shall notify the Executive in writing that it intends
to replace him within 30 days after the date the notice is sent. If the
Executive shall not have returned to the performance of his duties hereunder on
substantially a full-time basis within 30 days after the date the notice is sent
by the Company, the Company may terminate the Executive and replace him without
breaching this Agreement. As used herein, the Disability Period shall mean the
period of disability required by the Company's long-term disability insurance
policies as a condition to providing disability benefits to the Executive under
such policies.
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10. Compensation Upon Termination or During Disability.
(a) Death or Disability. If the Executive's employment is
terminated by reason of his death or disability, the Executive or the
Executive's estate shall be entitled to (1) all Base Salary, pro-rata
bonus and all fringe benefits accrued and vested through the Date of
Termination, (2) all accrued and vested retirement benefits and in
addition, in the event of the death of the Executive, all stock options
granted prior to the date of death shall become 100% vested, and (3) in
the case of the Executive's death, if no beneficiary is designated, the
proceeds of the insurance policy provided for in Section 6(h) hereof.
(b) Termination by Company For Cause. If the Executive's
employment is terminated for Cause, the Executive shall be entitled to
receive (1) his full Base Salary accrued through the Date of
Termination at the rate in effect at the time the notice of termination
is given and (2) only such Options as have vested prior to the Date of
Termination. The Company shall have no further obligations to the
Executive under this Agreement.
(c) Termination Upon Retirement. If the Executive's employment
is terminated as a result of his Retirement the Executive shall be
entitled to receive (1) his full Base Salary accrued through the Date
of Termination plus a pro-rata bonus at the rate in effect at the time
the notice of termination is given and (2) 100% vesting of the Options
he has been granted prior to the Date of Termination. The Company shall
have no further obligations to the Executive under this Agreement,
other than its obligations under the Company's retirement plans and
policies if the Executive's employment is terminated as a result of his
Retirement. If the Executive's Options vest under this paragraph, the
deadline for exercising such Options under the applicable Option
Agreement shall be the date which is the sooner of three years after
the Date of Termination or the deadline for exercising such Options set
forth in the Option Agreement.
(d) Termination by Company Without Cause or by the Executive
with Good Reason. Subject to Section 10(e), if the Company terminates
the Executive's employment pursuant to Section 8(c), or the Executive
terminates his employment pursuant to Section 8(f) then the Company
shall pay to the Executive his full Base Salary accrued through the
Date of Termination at the rate in effect on the Date of Termination.
In addition, the Company shall pay to the Executive, as liquidated
damages, or severance pay, or both, on the thirtieth (30th) day
following the Date of Termination, a lump-sum amount equal to (a) two
times the Base Salary then in effect plus (b) two times the annual car
allowance provided for in this Agreement. In addition, the Company
shall maintain in full force and effect, for the continued benefit of
the Executive for eighteen (18) months following the Date of
Termination, all employee benefit plans and programs in which the
Executive was entitled to participate immediately prior to the Date of
Termination, so long as the Executive's continued participation is
possible under the general terms and provisions of such plans and
programs.
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In addition, if the Date of Termination, as defined in
Section 1, is the date the term of this Agreement expires as specified
in Section 2, all stock options granted prior to the date of
termination shall become 100% vested.
(e) Termination of Executive Upon Change of Control. (1)
Notwithstanding Section 10(d), if the Company terminates the
Executive's employment pursuant to Section 8(c) within two years
following a Change of Control, or (2) if the Executive terminates his
employment pursuant to Section 8(d), or (3) if a Change of Control
occurs and the Executive's employment was terminated by the Company
pursuant to Section 8(c) during the period 180 days prior to the date
on which the Change of Control occurs, and if it is reasonably
demonstrated by the Executive that such termination of employment (1)
was at the request of a third party who had taken steps reasonably
calculated to effect a Change of Control or (2) otherwise arose in
connection with or in anticipation of a Change of Control, then in lieu
of any other severance payment or liquidated damages described herein,
the Company shall pay to the Executive, as liquidated damages, or
severance pay, or both, on the thirtieth (30th) day following the Date
of Termination, a cash lump-sum amount equal to the higher of the
following amounts:
o Three times the Executive's Base Salary then in
effect, plus three times the average of the bonuses
paid to Executive during the prior three calendar
years (or the number of calendar years that bonuses
have been paid to Executive if bonuses have been paid
for less than three calendar years) or
o Three times the Executive's Base Salary then in
effect, plus three times his target bonus under
Section 6(b) for the then current calendar year,
assuming the Percent of Target Award Earned is 100%.
If the Executive terminates his employment within two years
following a Change of Control pursuant to Section 8(e) hereof, then in
lieu of any other severance payment or liquidated damages described
herein, the Company shall pay to the Executive, as liquidated damages,
or severance pay, or both, on the thirtieth (30th) day following the
Date of Termination, a cash lump-sum amount equal to the higher of the
following amounts:
o The Executive's Base Salary then in effect,
plus the average of the bonuses paid to Executive
during the prior three calendar years (or the number
of calendar years that bonuses have been paid to
Executive if bonuses have been paid for less than
three calendar years) or
o The Executive's Base Salary then in effect,
plus his target bonus under Section 6(b) for the then
current calendar year, assuming the Percent of Target
Award Earned is 100%.
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(f) If Section 280G of the Internal Revenue Code of 1986, as
amended (the "Code") applies to payments made to the Executive upon a
Change of Control, the Company shall pay to the Executive an amount
necessary to negate the effect upon the Executive of any excise tax on
any portion of such payment pursuant to Section 280G of Code, as well
as the effect upon the Executive of any excise tax and income tax on
amounts required to be paid pursuant to this subsection (f), such
amounts under this subsection (f) to be paid to the Executive in four
equal installments, with the first installment due and payable on the
Date of Termination, and the remaining installments due and payable
every 90 days following the Date of Termination.
11. Non-Competition. In recognition of the Company's substantial
relationships with business clients or prospects and its trade secrets and other
valuable, confidential business or professional information, the Executive
agrees that, in the event of any termination, except termination under Sections
8(c), 8(e) or 8(f), the Executive shall not, for a period expiring three (3)
years after the Date of Termination, without the prior written approval of the
Board, participate in the management of, be employed by or own any business
enterprise at a location within the United States that engages in substantial
competition with the online mortgage origination business of the Company or its
affiliates, where such enterprise's revenues from any competitive activities
amount to 10% or more of such enterprise's net revenues or sales for its most
recently completed fiscal year. Nothing in this Section 11 shall prohibit the
Executive from owning stock or other securities of a competitor amounting to
less than five percent of the outstanding capital stock of such competitor. For
terminations under Section 8(c), 8(e) or 8(f), the Executive shall not, for a
period expiring one (1) year after the Date of Termination, without the prior
written approval of the Board, participate in the management of, be employed by
or own any business enterprise at a location within the United States that
engages in substantial competition wit the Company or its affiliates, where such
enterprise's revenues from any competitive activities amount to 10% or more of
such enterprise's net revenues or sales for its most recently completed fiscal
year; provided, however, that nothing in this Section 11 shall prohibit the
Executive from owning stock or other securities of a competitor amounting to
less than five percent of the outstanding capital stock of such competitor. In
addition and notwithstanding anything herein to the contrary, this section shall
not apply if the Date of Termination as defined in Section 1 is the date the
term of this Agreement expires as specified in Section 2.
12. Non-Solicitation. In recognition of the Company's substantial
relationships with business clients or prospects and its trade secrets and other
valuable, confidential business or professional information, the Executive
agrees that during the term of his employment with the Company, and for a period
of two years following the termination of his employment by Company for Cause or
by the Executive voluntarily, he will not, directly or indirectly, for himself
or for any other commercial enterprise, directly or indirectly (i) solicit any
of the Company's customers, members, joint venture partners, or technology
partners, which relationships are in existence during the term of his employment
or at the time of termination of such employment, as the case may be, or (ii)
solicit or discuss with any employee of the Company the employment of such
Company employee by any commercial enterprise other than the Company, nor
recruit, attempt to recruit, hire or attempt to hire any such Company employee
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on behalf of any commercial enterprise other than the Company. In addition and
notwithstanding anything herein to the contrary, this section shall not apply if
the Date of Termination as defined in Section 1 is the date the term of this
Agreement expires as specified in Section 2.
The Executive acknowledges that the enforcement of the provisions in
Section 11 and this Section 12 shall not result in unreasonable deprivation of
his right to earn a living and that if the provisions of Section 11 or this
Section 12 shall be determined by any court to be invalid or unenforceable to
any extent, then Section 11 or this Section 12, as applicable, shall be deemed
to be amended so as to be valid and enforceable to the fullest extent permitted
by law.
13. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be deemed properly mailed, if
mailed to the following addresses:
If to the Executive:
Xxxx X. Xxxxxx
0000 XX 00xx Xxxxxx
Xxxxx, XX 00000
If to the Company:
Xxxxxxxx.xxx, Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: General Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
14. Successors; Binding Agreement. This Agreement and all rights of the
Executive hereunder shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive should
die while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the Executive's devisee,
legatee, or other designee or, if there be no such designee, to the Executive's
estate.
15. Miscellaneous. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is approved
by the Board and agreed to in writing signed by the Executive and such officer
as may be specifically authorized by the Board. No waiver by either party hereto
at any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
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shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Florida, exclusive of
conflicts of laws principles.
16. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Florida (without regard to the
choice of law or conflict of laws provisions thereof).
18. Attorneys' Fees. In the event of any litigation arising out of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees
and expenses from the losing party, whether incurred before suit is brought,
before or at trial, on appeal, or in insolvency proceedings.
19. Jurisdiction. Each party to this Agreement hereby irrevocably
submits to the jurisdiction of any Florida state court or federal court sitting
in Broward County, Florida in any action or proceeding arising out of or
relating to this Agreement, or any other related document, and each hereby
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in such Florida state or federal court. The Company and
Executive agree that such jurisdiction and venue shall be exclusive and each
party to this Agreement hereby irrevocably waives, to the fullest extent it may
effectively do so, the defense of any inconvenient forum to the maintenance of
such action or proceeding.
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, the parties have executed this Agreement on the
date and year first above written.
XXXXXXXX.XXX, INC.,
("Company")
By: /s/ Xxxx X. Xxxxx
---------------------
Xxxx X. Xxxxx, Executive Vice President
/s/ Xxxx X. Xxxxxx
------------------
Xxxx X. Xxxxxx ("Executive")
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