EXHIBIT 10.7
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), is entered into as of
February 8, 2005, (the "Effective Date") by and between XXXX XXXXX, residing at
0000 Xxxxxxxxxxx Xxx, Xxxxxxx, Xxxxxxxxx ("Employee"), and SUNAIR ELECTRONICS,
INC., a Florida corporation, with offices at 0000 X.X. Xxxxx Xxx., Xx.
Xxxxxxxxxx, XX 00000 (the "Company"). This Agreement replaces and supercedes
that certain Employment Agreement between Employee and the Company dated as of
November 16, 2004.
WITNESSETH:
WHEREAS, the Company is engaged in several lines of business, including
supplying radio communications systems for defense applications and global
telecommunications hardware and software, and the Company desires to enter into
the pest control services industry;
WHEREAS, the Employee has a great deal of knowledge, experience and
expertise in the pest control services industry; and
WHEREAS, the Company and Employee are willing to commence an employment
relationship, on the terms, conditions and covenants set forth in this
Agreement.
NOW, THEREFORE, in consideration of Employee's commencement of employment
with the Company, the mutual covenants contained herein and other good and
valuable consideration, the receipt of which the Company and Employee hereby
acknowledge, Employee and the Company agree, as follows:
1. Position. Employee agrees to employment with the Company, and the
Company hereby employs Employee, in the position of Vice President of Corporate
Development from the Effective Date until February 14, 2005, and as of February
15, 2005, Employee shall be employed in the position of President and Chief
Executive Officer of the Company. Employee further agrees to faithfully and
diligently perform the job duties and to carry out the responsibilities of that
position and such other duties and responsibilities traditionally associated
with such position as determined by the Board of Directors of the Company from
time to time.
2. Employee's Effort. Employee shall faithfully and diligently perform
his duties in the capacity as an employee and in such capacity shall spend his
full working time and best efforts, skill and attention to his position and to
the business and interests of the Company, and Employee shall be prohibited from
causing any private investments in businesses that are unrelated to the business
of the Company to interfere with his duties to the Company pursuant to this
Agreement.
3. Salary.
(a) The Company shall pay Employee (i) base compensation (the
"Salary") for services rendered in the amount of Three Hundred Twenty Five
Thousand Dollars
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($325,000.00) per annum, payable in installments consistent with the Company's
normal payroll schedule, subject to applicable withholding and other taxes
(which base compensation may be increased by the Board of Directors of the
Company, in its sole discretion), and (ii) annual bonus, if any, as may be
determined by the Board of Directors of the Company, in its sole discretion. The
Board of Directors shall annually review Employee's Salary for adjustment when
appropriate.
(b) The Employee will be entitled to participate in any bonus plan,
incentive compensation program or incentive stock option plan or other employee
benefits of the Company and which are available to the other similarly situated
executives of the Company, on the terms and at the level of participation
determined by the Board of Directors. Options granted pursuant to such plans
shall vest in accordance with the applicable plan from the time of grant until
the Expiration Date (as defined herein).
4. Benefits.
(a) The Company will notify Employee on or about the beginning of
each calendar year with respect to the holiday schedule (including the Company's
policy for allowing personal holidays) for the coming year and the Employee
shall be entitled to nine (9) paid holidays per year, in accordance with the
Company's policies.
(b) Employee shall be entitled to twenty (20) paid vacation days
each calendar year, to be taken at such times as the Employee and the Company
shall mutually determine and provided that no vacation time shall significantly
interfere with the duties required to be rendered by the Employee hereunder. Any
vacation time not taken by the Employee during any calendar year may not be
carried forward into any succeeding calendar year.
(c) Employee shall be entitled to sick leave and emergency leave
according to the regular policies and procedures of the Company. Additional sick
leave or emergency leave over and above paid leave provided by the Company, if
any, shall be unpaid and shall be granted at the discretion of the Board of
Directors of the Company.
(d) During the term of employment hereunder, the Employee shall be
entitled to participate in all medical, dental, hospitalization, accidental
death and dismemberment, disability, travel and life insurance plans, and any
and all other plans as are presently and hereinafter offered by the Company to
its executive personnel, including savings, pension, profit-sharing and deferred
compensation plans, subject to the general eligibility and participation
provisions set forth in such plans. Employee shall be responsible for payment of
any federal or state income tax imposed upon these benefits.
(e) Employee shall be entitled to participate in any pension or
profit sharing plan, incentive stock option plan or any other type of plan
adopted by Company for the benefit of its officers and/or regular employees
pursuant to the terms of such plans.
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(f) During the term of this Agreement, the Company shall provide
the Employee with a non-accountable automobile allowance of Seven Hundred
Dollars ($700.00) per month. The Employee shall be responsible for all
insurance, lease and other similar expenses incurred by the Employee by reason
of the use of such automobile. The Company shall be responsible for all costs of
gasoline, oil, repairs, maintenance, and other similar expenses incurred by the
Employee by reason of the use of such automobile for Company business from time
to time. Employee shall be responsible for payment of any federal or state
income tax imposed upon these benefits.
(g) Employee shall be entitled to reimbursement for all reasonable
expenses, including travel and entertainment, incurred by Employee in the
performance of Employee's duties. Employee will maintain records and written
receipt as required by the Company policy and reasonably requested by the Board
of Directors of the Company to substantiate such expenses.
5. Term; Termination. This Agreement and the status and obligations of
Employee hereunder as an employee of the Company (except as provided for below)
shall cease and terminate effective upon the close of business on the fourth
anniversary of the Effective Date (the "Expiration Date") unless earlier
terminated pursuant to this Section 5 or further extended by the parties hereto
in writing in a separate instrument provided to the other party no later than
sixty (60) days prior to the applicable Expiration Date; provided, however, that
upon such date said termination shall not affect any rights that may have been
specifically granted to Employee by the Board of Directors of the Company or a
designated committee thereof pursuant to any of the Company's retirement plans,
supplementary retirement plans, profit sharing and savings plans, healthcare,
401(k) or any other employee benefit plans sponsored by the Company, it being
understood that no such rights are granted hereunder and that the Employee's
participation in such plans shall cease as of the date of said termination. In
addition, notwithstanding the expiry or termination of this Agreement pursuant
to this Section 5 or otherwise, The Company's and the Employee's rights and
obligations under Sections 7 through 12 inclusive of this Agreement shall
survive such termination or expiration of this Agreement in accordance with the
terms of such Sections.
(a) Termination with Notice by Either Party. The Company or
Employee may terminate this Agreement for any reason or no reason upon sixty
(60) days prior written notice to the other. If the Company terminates the
employment of Employee without Good Cause (as herein defined), the Company fails
to renew this Agreement as provided in Section 5 without Good Cause, the
Employee terminates his employment with Good Cause (as herein defined) or the
Employee fails to renew this Agreement as provided in Section 5, the Company
shall pay Employee severance compensation calculated at the rate of Salary in
effect as of the date immediately preceding the date of termination and the cost
of premiums for any Company sponsored insurance policy (or the cash equivalent)
for twenty-four (24) months, payable in the manner and at such times as the
Salary otherwise would have been payable to the Employee hereunder were Employee
to continue to be employed by the Company. If the Company terminates the
employment of Employee with Good Cause, the Company fails to renew this
Agreement as provided in Section 5 with Good Cause, or Employee terminates his
employment
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with the Company hereunder as provided in this Section 5(a), the Company shall
not be under any obligation to pay Employee, and Employee shall not be entitled
to, any such severance compensation.
(b) Termination for Good Cause by Company. In the case of the
Company terminating this Agreement, "Good Cause" means any one or more of the
following:
(1) a material breach or material default by Employee of the
material terms of this Agreement (except any such breach or default which is
caused by the physical disability or death of Employee) which remains uncured
after twenty (20) days following Employee's receipt from the Company of written
notice specifying such breach or default, if subject to cure;
(2) gross negligence or willful misfeasance by Employee or the
breach of fiduciary duty by Employee (if affirmatively determined by the Board
of Directors of the Company) in the performance of his duties as an employee
hereunder;
(3) the commission by Employee of an act of fraud,
misappropriation of funds, breach of trust, embezzlement or any other crime in
connection with Employee's duties;
(4) conviction of Employee of a felony or any crime which
involves dishonesty or a breach of trust;
(5) the Employee shall be unable, or fail, to perform the
essential functions of his/her position for which he was hired, with or without
reasonable accommodation, for any period of six months or more to the extent
termination for such disability is in accordance with applicable law;
(6) the death of the Employee; or
(7) the Employee is unable to perform any of the functions of
his position for which he was hired, because such performance is prohibited or
enjoined by a judicial or administrative order or other agreement enforcing any
non-competition, non-solicitation or other restrictive covenant or agreement to
which the Employee is a party.
In the event of a termination for Good Cause, the Company will pay
Employee the Salary earned and reasonable expenses reimbursable under this
Agreement incurred through the date of Employee's termination. Any good faith
determination by the Board of Directors of the Company of Good Cause shall be
binding and conclusive on all interested parties. Upon the termination of
Employee's employment with the Company due to death or disability as set forth
in Sections 5(b)(5) and 5(b)(6) above, the Employee shall be entitled to retain
all options that have been granted to Employee and have vested as of the date of
such termination for the duration allowed under applicable law and the Company's
stock option plan.
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(c) Termination for Good Cause by Employee. In the case of the
Employee terminating this Agreement, "Good Cause" means any one or more of the
following:
(1) there shall be a continuing material breach or continuing
material default by the Company of the material terms of this Agreement which
remains uncured after twenty (20) days following the Company's receipt from the
Employee of written notice specifying such breach or default;
(2) if Employee shall no longer hold the position of Chief
Executive Officer of the Company with duties and responsibilities consistent
with such positions unless there is Good Cause for the removal of Employee from
such position; or
(3) a reduction in Employee's Salary.
6. Change in Control and Other Grounds Entitling Employee to Terminate.
"Change in Control" shall mean (a) any sale, lease, exchange or other transfer
(in one transaction or a series of transactions) of all or substantially all of
the assets of the Company; (b) any consolidation or merger or other business
combination of the Company with any other entity where the shareholders of the
Company, immediately prior to the consolidation or merger or other business
combination would not, immediately after the consolidation or merger or other
business combination, beneficially own, directly or indirectly, shares
representing fifty percent (50%) of the combined voting power of all of the
outstanding securities of the entity issuing cash or securities in the
consolidation or merger or other business combination (or its ultimate parent
corporation, if any); or (c) the Board of Directors of the Company adopts a
resolution to the effect that a "Change In Control" has occurred for purposes of
this Agreement. Notwithstanding the foregoing, no transaction shall be deemed to
constitute a "Change in Control" for purposes of this Agreement if such
transaction involves a pest control services company or relates to any existing
or former business segment or division in which the Company operates, or if the
Change of Control is procured, directly or indirectly, by the Employee, Xxxxxxx
X. Xxxxxx, Xxxxx X. Xxxxxxx, Coconut Palm Capital Investors II, Ltd., any then
existing executive officer or director of the Company or any former executive
officer or director previously affiliated with the Company at any time during
the six month period prior to the Change of Control event and/or or any
affiliates of each of the foregoing.
Upon a Change in Control, 100% of all unvested stock options and/or
restricted shares held by Employee shall immediately vest.
Further, if Employee elects to terminate his employment hereunder with
Good Cause (as defined in Section 5(c)) because any of the scenarios
constituting such Good Cause occurs within one (1) year of a Change in Control
then Employee shall be entitled to the severance payments provided for in
Section 5(a).
Nothing stated in this Section 6 shall operate to reduce or eliminate the
severance obligations of the Company to the Employee pursuant to Section 5(a) to
the extent the Company terminates the employment of Employee without Good Cause
whether in connection with a Change in Control or otherwise.
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7. Confidentiality. Employee shall keep confidential, except as the
Company may otherwise consent in writing, and not divulge, communicate, disclose
use to the detriment of the Company or for the benefit of any other person or
persons, misuse in any way, or make any use of except for the benefit of the
Company, at any time either during the term of this Agreement or at any time
thereafter, any Confidential Information (as defined herein). For purposes of
this Agreement, "Confidential Information" means information disclosed to the
Employee or known by the Employee as a consequence of or through the unique
position of his employment with the Company (including information conceived,
originated, discovered or developed by the Employee) prior to or after the date
hereof, and not generally or publicly known, about the Company or its business,
including, without limitation, trade secrets, knowledge, data or other
information of the Company relating to the products, processes, know how,
technical data, designs, formulas, test data, customer lists, business plans,
marketing plans and strategies, and product pricing strategies or other subject
matter pertaining to any business of the Company or any of its clients,
customers, consultants, licensees or affiliates which Employee may produce,
obtain or otherwise learn of during the course of Employee's performance of
services, including information expressly deemed to be confidential by the
Company . Employee shall not deliver, reproduce, or in any way allow any such
Confidential Information to be delivered to or used by any third parties without
the specific direction or consent of a duly authorized representative of the
Company, except in connection with the discharge of his duties hereunder. The
terms of this paragraph shall survive termination of this Agreement. Any
Confidential Information or data now or hereafter acquired by the Employee with
respect to the business of the Company (which shall include, but not be limited
to, information concerning the Company's financial condition, prospects,
technology, customers, suppliers, sources of leads and methods of doing
business) shall be deemed a valuable, special and unique asset of the Company
that is received by the Employee in confidence and as a fiduciary, and Employee
shall remain a fiduciary to the Company with respect to all of such information.
Notwithstanding anything to the contrary herein, Employee shall not have any
obligation to keep confidential any information (and the term Confidential
Information shall not be deemed to include any information) that (a) is
generally available to the public through no fault or wrongful act of Employee
in breach of the terms hereof, (b) is disseminated by the Company or any of its
affiliates publicly without requiring confidentiality, (c) is required by law or
regulation to be disclosed by Employee, (d) is required to be disclosed by
Employee to any government agency or person to whom disclosure is required by
judicial or administrative process, or (e) is within Employee's knowledge,
experience and expertise in the pest control services industry that he possessed
at the time of this Agreement; provided that such knowledge, experience and
expertise shall not be used in violation of the restrictive covenants set forth
in Sections 9 through 12 hereof.
8. Return of Confidential Material. Upon the completion or other
termination of Employee's services for the Company, Employee shall promptly
surrender and deliver to the Company all records, materials, equipment,
drawings, documents, notes and books and data of any nature pertaining to any
invention, trade secret or Confidential Information of the Company or to
Employee's services, and Employee will not take with him any description
containing or pertaining to any Confidential Information, knowledge or data of
the Company which Employee may produce or obtain during the course of his
services. The terms of this paragraph shall survive termination of this
Agreement.
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9. Competition. Employee will not do any of the following, either
directly or indirectly, during Employee's employment with the Company and,
during the Applicable Non-Competition Period (as herein defined), anywhere in
the United States. In the event that Employee improperly competes with the
Company in violation of this Section, the period during which he engages in such
competition shall not be counted in determining the Applicable Non-Competition
Period:
(a) For purposes of this Agreement, "Competitive Activity" shall
mean any activity relating to, in respect of or in connection
with, directly or indirectly, the pest control services
industry or any existing or former business segment or
division in which the Company operates.
(b) For purposes of this Agreement, "Applicable Non-Competition
Period" shall equal (i) two (2) years after Employee's
cessation of employment with the Company in the event the
Company terminates the employment of Employee without Good
Cause, the Company fails to renew this Agreement as provided
in Section 5 without Good Cause, the Employee terminates his
employment with the Company with Good Cause or Employee fails
to renew this Agreement as provided in Section 5, but only to
the extent the Company complies with its obligation to pay the
severance payments required by Section 5(a) hereunder to
Employee and (ii) two (2) years after Employee's cessation of
employment with the Company in the event the Company
terminates the employment of Employee with Good Cause, the
Company fails to renew this Agreement as provided in Section 5
with Good Cause, or Employee terminates his employment with
the Company hereunder without Good Cause as provided in this
Section 5(a).
(c) Employee shall not, directly or indirectly, own any interest
in, manage, operate, control, consult for, be an officer or
director of, work for, or be employed in any capacity by, any
sole proprietorship, corporation, company, partnership,
association, venture or business any company or any other
business, entity, agency or organization (whether as an
employee, officer, director, partner, agent, security holder,
creditor, consultant or otherwise) that directly or indirectly
(or through any affiliated entity) engages in Competitive
Activity; provided that such provision shall not apply to the
Employee's ownership of securities of the Company or the
acquisition by the Employee, solely as an investment, of
securities of any issuer that is registered under Section
12(b) or 12(g) of the Securities Exchange Act of 1934, as
amended, and that are listed or admitted for trading on any
United States national securities exchange or that are quoted
on the National Association of Securities Dealers Automated
Quotations System, or any similar system or automated
dissemination of quotations of securities prices in common
use, so long as the Employee does not control, acquire a
controlling interest in or become
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a member of a group which exercises direct or indirect control
of, more than five percent of any class of capital stock of
such corporation.
(d) Employee shall not, directly or indirectly, for himself or for
any other person, firm, corporation, partnership, association
or other entity, solicit or perform services in connection
with any Competitive Activity for any prior or current
customers of the Company;
(e) Employee shall not, directly or indirectly, for himself or for
any other person, firm, corporation, partnership, association
or other entity, solicit or attempt to solicit for employment
or employ or attempt to employ any then current employees or
former employees employed by the Company without the Company's
consent, as applicable, unless such employee or former
employee has not been employed by the Company for a period in
excess of six months; or
(f) Employee shall not make known the names and addresses of such
clients or any information relating in any manner to the
Company's trade or business relationships with such customers,
other than in connection with the performance of the
Employee's duties under this Agreement.
Employee and the Company agree that the phrase "Employee's cessation
of employment with the Company" as used in this Agreement, refers to any
separation from his employment at the Company either voluntarily by Employee
pursuant to Sections 5(a) and 5(c) or involuntarily by the Company pursuant to
Sections 5(a) and 5(b).
10. Other Obligations.
(a) Employee acknowledges that the Company from time to time may
have agreements with other persons, which impose obligations or restrictions on
the Company made during the course of work thereunder or regarding the
confidential nature of such work. Employee will be bound by all such obligations
and restrictions and will take all action necessary to discharge the obligations
of the Company thereunder.
(b) All of Employee's obligations under this Agreement shall be
subject to any applicable agreements with, and policies issued by the Company to
which Employee is subject that are generally applicable to the similarly
situated executives of the Company.
11. Trade Secrets of Others. Employee represents that his performance of
all the terms of this Agreement as employee to the Company does not and will not
breach any agreement to keep in confidence proprietary information, knowledge or
data acquired by Employee in confidence or in trust. Employee will not enter
into any agreement, either written or oral, which is in conflict with this
Agreement.
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12. Other Provisions Relating to Restrictive Covenants.
(a) Ownership of Developments. All copyrights, patents, trade
secrets, or other intellectual property rights associated with any ideas,
concepts, techniques, inventions, processes, or works of authorship developed or
created by the Employee during the course of performing work for the Company or
its clients (collectively, the "Work Product") shall belong exclusively to the
Company and shall, to the extent possible, be considered a work made by the
Employee for hire for the Company within the meaning of Title 17 of the United
States Code. To the extent the Work Product may not be considered work made by
the Employee for hire for the Company, the Employee agrees to assign, and
automatically assign at the time of creation of the Work Product, without any
requirement of further consideration, any right, title, or interest the Employee
may have in such Work Product. Upon the request of the Company, the Employee
shall take such further actions, including execution and delivery of instruments
of conveyance, as may be appropriate to give full and proper effect to such
assignment.
(b) Books and Records. All books, records, and accounts relating
in any manner to the customers or clients of the Company, whether prepared by
the Employee or otherwise coming into the Employee's possession, shall be the
exclusive property of the Company and shall be returned immediately to the
Company on termination of the Employee's employment hereunder or on the
Company's request at any time.
(c) Definition of Company. Solely for purposes of these Sections 7
through 12, the term "Company" also shall include any existing or future
subsidiaries of the Company that are operating during the time periods described
herein and any other entities that directly or indirectly, through one or more
intermediaries, control, are controlled by or are under common control with the
Company during the periods described herein.
(d) Acknowledgment by the Employee. The Employee acknowledges and
confirms that (a) the restrictive covenants contained in these Sections 7
through 12 are reasonably necessary to protect the legitimate business interests
of the Company, and (b) the restrictions contained in these Sections 7 through
12 (including without limitation the length of the term of such provisions) are
not overbroad, overlong, or unfair and are not the result of overreaching,
duress or coercion of any kind. The Employee further acknowledges and confirms
that his full, uninhibited and faithful observance of each of the covenants
contained in these Sections 7 through 12 will not cause him any undue hardship,
financial or otherwise, and that enforcement of each of the covenants contained
herein will not impair his ability to obtain employment commensurate with his
abilities and on terms fully acceptable to him or otherwise to obtain income
required for the comfortable support of him and his family and the satisfaction
of the needs of his creditors. The Employee acknowledges and confirms that his
special knowledge of the business of the Company is such as would cause the
Company serious injury or loss if he were to use such ability and knowledge to
the benefit of a competitor or were to compete with the Company in violation of
the terms of these Sections 7 through 12. The Employee further acknowledges that
the restrictions contained in these Sections 7 through 12 are intended to be,
and shall be, for the benefit of and shall be enforceable by, the Company's
successors and assigns.
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(e) Reformation by Court. In the event that a court of competent
jurisdiction shall determine that any provision of these Sections 7 through 12
is invalid or more restrictive than permitted under the governing law of such
jurisdiction, then only as to enforcement of these Sections 7 through 12 within
the jurisdiction of such court, such provision shall be interpreted and enforced
as if it provided for the maximum restriction permitted under such governing
law.
(f) Extension of Time. If the Employee shall be in violation of
any provision of these Sections 7 through 12, then each time limitation set
forth in these Sections 7 through 12 shall be extended for a period of time
equal to the period of time during which such violation or violations occur. If
the Company seeks injunctive relief from such violation in any court, then the
covenants set forth in these Sections 7 through 12 shall be extended for a
period of time equal to the pendency of such proceeding including all appeals by
the Employee.
(g) Injunction. It is recognized and hereby acknowledged by the
parties hereto that a breach by the Employee of any of the covenants contained
in these Sections 7 through 12 of this Agreement will cause irreparable harm and
damage to the Company, the monetary amount of which may be virtually impossible
to ascertain. As a result, the Employee recognizes and hereby acknowledges that
the Company shall be entitled to an injunction from any court of competent
jurisdiction enjoining and restraining any violation of any or all of the
covenants contained in these Sections 7 through 12 of this Agreement by the
Employee or any of his affiliates, associates, partners or agents, either
directly or indirectly, and that such right to injunction shall be cumulative
and in addition to whatever other remedies the Company may possess.
(h) Survival. The provisions of these Sections 7 through 12 shall
survive the termination of the term of employment hereunder or expiration of the
term of this Agreement.
13. Modification. This Agreement may not be changed, modified, released,
discharged, abandoned, or otherwise amended, in whole or in part, except by an
instrument in writing, signed by Employee and by the Company. Any subsequent
change or changes in Employee's relationship with the Company or Employee's
compensation shall not affect the validity or scope of this Agreement.
14. Entire Agreement. Employee acknowledges receipt of this Agreement,
and agrees that with respect to the subject matter thereof, it is Employee's
entire agreement with the Company, superseding any previous oral or written
communications, representations, understandings with the Company or any office
or representative thereof. Each party to the Agreement acknowledges that, in
executing this Agreement, such party has had the opportunity to seek the advice
of independent legal counsel, and has read and understood all of the terms and
provisions of the Agreement.
15. Severability. In the event that any paragraph or provision of this
Agreement shall be held to be illegal or unenforceable, the entire Agreement
shall not fall on account thereof, but shall otherwise remain in full force and
effect, and such paragraph or provision shall be enforced to the maximum extent
permissible.
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16. Successors and Assigns. This Agreement shall be binding upon
Employee's heirs, executors, administrators or other legal representatives and
is for the benefit of and shall be enforceable by the Company, its successors
and assigns.
17. Governing Law. This Agreement shall be governed by the laws of the
State of Florida except for any conflicts of law rules thereof that might direct
the application of the substantive law of another state.
18. Counterparts. This Agreement may be signed in counterparts and by
facsimile transmission, each of which shall be deemed an original and both of
which shall together constitute one agreement.
19. No Waiver. No waiver by either party hereto of any breach of this
Agreement by the other party hereto shall constitute a waiver of any subsequent
breach.
20. Notice. Any notice hereby required or permitted to be given shall be
sufficiently given if in writing and upon mailing by registered or certified
mail, postage prepaid, to either party at the address of such party or such
other address as shall have been designated by written notice by such party to
the other party.
21 Arbitration.
(a) Exclusive Remedy. The parties recognize that litigation in
federal or state courts or before federal or state administrative agencies of
disputes arising out of the Employee's employment with the Company or out of
this Agreement, or the Employee's termination of employment or termination of
this Agreement, may not be in the best interests of either the Employee or the
Company, and may result in unnecessary costs, delays, complexities, and
uncertainty. The parties agree that any dispute between the parties arising out
of or relating to the Employee's employment, or to the negotiation, execution,
performance or termination of this Agreement or the Employee's employment,
including, but not limited to, any claim arising out of this Agreement, claims
under Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights
Act of 1991, the Age Discrimination in Employment Act of 1967, the Americans
with Disabilities Act of 1990, Section 1981 of the Civil Rights Act of 1966, as
amended, the Family Medical Leave Act, the Employee Retirement Income Security
Act, and any similar federal, state or local law, statute, regulation, or any
common law doctrine, whether that dispute arises during or after employment
shall be resolved by arbitration in the Broward County, Florida area, in
accordance with the National Employment Arbitration Rules of the American
Arbitration Association, as modified by the provisions of this Section 21.
Except as set forth below with respect to Section 12 of this Agreement, the
parties each further agree that the arbitration provisions of this Agreement
shall provide each party with its exclusive remedy, and each party expressly
waives any right it might have to seek redress in any other forum, except as
otherwise expressly provided in this Agreement. Notwithstanding anything in this
Agreement to the contrary, the provisions of this Section 21 shall not apply to
any injunctions that may be sought with respect to disputes arising out of or
relating to Sections 7 through 12 of this Agreement. The parties acknowledge and
agree that their obligations under this arbitration agreement survive the
expiration or termination of this Agreement and continue after the termination
of the employment relationship between the Employee and the Company. BY ELECTION
OF ARBITRATION
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AS THE MEANS FOR FINAL SETTLEMENT OF ALL CLAIMS, THE PARTIES HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO, AND AGREE NOT TO, XXX EACH OTHER IN ANY ACTION IN A
FEDERAL, STATE OR LOCAL COURT WITH RESPECT TO SUCH CLAIMS, BUT MAY SEEK TO
ENFORCE IN COURT AN ARBITRATION AWARD RENDERED PURSUANT TO THIS AGREEMENT. THE
PARTIES SPECIFICALLY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY,
AND FURTHER AGREE THAT NO DEMAND, REQUEST OR MOTION WILL BE MADE FOR TRIAL BY
JURY.
(b) Arbitration Procedure and Arbitrator's Authority. In any
arbitration proceeding, each party shall be entitled to engage in any type of
discovery permitted by the Federal Rules of Civil Procedure, to retain its own
counsel, to present evidence and cross-examine witnesses, to purchase a
stenographic record of the proceedings, and to submit post-hearing briefs. In
reaching his/her decision, the arbitrator shall have no authority to add to,
detract from, or otherwise modify any provision of this Agreement. The
arbitrator shall submit with the award a written opinion which shall include
findings of fact and conclusions of law. Judgment upon the award rendered by the
arbitrator may be entered in any court having competent jurisdiction.
(c) Effect of Arbitrator's Decision: Arbitrator's Fees. The
decision of the arbitrator shall be final and binding between the parties as to
all claims which were or could have been raised in connection with the dispute,
to the full extent permitted by law. In all cases in which applicable federal
law precludes a waiver of judicial remedies, the parties agree that the decision
of the arbitrator shall be a condition precedent to the institution or
maintenance of any legal, equitable, administrative, or other formal proceeding
by the Employee in connection with the dispute, and that the decision and
opinion of the arbitrator may be presented in any other forum on the merits of
the dispute. If the arbitrator finds that the Employee was terminated in
violation of law or this Agreement, the parties agree that the arbitrator acting
hereunder shall be empowered to provide the Employee with any remedy available
should the matter have been tried in a court, including equitable and/or legal
remedies, compensatory damages and back pay. The arbitrator's fees and expenses
and all administrative fees and expenses associated with the filing of the
arbitration shall be borne by the non-prevailing party.
22. Section 162(m) Limits. Notwithstanding any other provision of this
Agreement to the contrary, if and to the extent that any remuneration payable by
the Company to the Employee for any year would exceed the maximum amount of
remuneration that the Company may deduct for that year under Section 162(m)
("Section 162(m)") of the Internal Revenue Code of 1986, as amended (the
"Code"), payment of the portion of the remuneration for that year that would not
be so deductible under Section 162(m) shall, in the sole discretion of the Board
of Directors, be deferred and become payable at such time or times as the Board
of Directors determines that it first would be deductible by the Company under
Section 162(m), with interest at the "short-term applicable rate" as such term
is defined in Section 1274(d) of the Code.
23. Assignment. The Company shall have the right to assign this
Agreement and its rights and obligations hereunder in whole, but not in part, to
any corporation or other entity which is a wholly-owned subsidiary of the
Company or with or into which the Company may hereafter merge or consolidate or
to which the Company 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 Company hereunder as fully as
if it had been
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originally made a party hereto. The Employee may not assign or transfer this
Agreement or any rights or obligations hereunder.
24. Waiver of Jury Trial. The Employee hereby knowingly, voluntarily and
intentionally waives any right that the Employee may have to a trial by jury in
respect of any litigation based hereon, or arising out of, under or in
connection with this Agreement and any agreement, document or instrument
contemplated to be executed in connection herewith, or any course of conduct,
course of dealing statements (whether verbal or written) or actions of any party
hereto.
[Signatures on following page]
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The undersigned have executed this Employment Agreement as of the date
first set forth above.
SUNAIR ELECTRONICS, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
/s/ Xxxx Xxxxx
-------------------------------------
Xxxx Xxxxx
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