EXHIBIT 10.10
SEPARATION AGREEMENT
This Separation Agreement ("Agreement") is made and entered into by
and among Action Products International, Inc. ("APII"), a Florida corporation,
with its principal offices at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxx 00000 and Xxxxxx X. Xxxxxxx ("Xxxxxxx"), an individual residing at 000
Xxxxx Xxxxx, Xxxxx Xxxx, Xxx Xxxxxx 00000.
WHEREAS, Xxxxxxx accepted employment as President and Chief Operating
Officer of APII under an Employment Agreement with an effective date of January
29, 2001, as amended, including the Amendment to Employment Agreement dated as
of July 1, 2002 (the "Employment Agreement"), and subsequently began employment
with APII; and
WHEREAS, pursuant to Section 3(c) of the Employment Agreement, APII
agreed to xxxxx Xxxxxxx the right to purchase up to 130,000 shares of APII's
common stock, par value $0.001 per share, pursuant to, and subject to the terms
of, a Stock Option Agreement dated February, 2001 (the "Non-Plan Stock Option
Agreement"); and
WHEREAS, APII granted to Xxxxxxx the right to purchase up to 70,000
shares of APII's common stock, par value $0.001 per share, under the 1996 Stock
Option Plan (the "Plan Stock Option Agreement") (the Non-Plan Stock Option
Agreement and Plan Stock Option Agreement are collectively referred to herein
as the "Stock Option Agreements"); and
WHEREAS, pursuant to Section 4 of the Employment Agreement, APII and
Xxxxxxx executed a Subscription Agreement (the "Subscription Agreement") dated
February 2001, under which Xxxxxxx acquired 114,286 shares of APII's common
stock, par value $0.001 per share from APII at a purchase price of $1.75 per
share for an aggregate purchase price of $200,000; and
WHEREAS, APII and Xxxxxxx desire, among other matters contained
herein, to terminate both the employment relationship and the Employment
Agreement, upon mutually acceptable terms and to settle any and all
differences, claims and potential claims arising out of, among other matters,
(i) Xxxxxxx'x employment and termination of employment with APII, (ii)
termination of the Employment Agreement, (iii) termination of APII's
obligations under the Stock Option Agreements and any other options or warrants
issued or granted to Xxxxxxx, and (iv) termination of the parties executory
obligations under the Subscription Agreement.
NOW THEREFORE, in consideration of the mutual promises and other
consideration contained herein and intending to be legally bound, the parties
agree as follows:
1. SEPARATION.
(A) Xxxxxxx hereby resigns, effective on the date hereof, from
any and all positions, officerships, and directorships he holds with APII or
any of its subsidiaries or affiliates. Simultaneous with the execution and
delivery hereof, Xxxxxxx has delivered to APII his written resignation in the
form attached hereto as Exhibit "A".
(B) Xxxxxxx has returned to APII any of the following that he has
in his possession: records and business documents, whether on computer or hard
copy, and other materials
(including but not limited to computer disks and tapes, computer programs and
software, office keys, APII credit cards, business cards (which business cards
Xxxxxxx has either returned to API or destroyed), correspondence, files,
customer lists, technical information, customer information, pricing
information, sources of supply, vendor information, business strategies, sales
and purchasing records and copies thereof) (collectively, the "APII Records")
provided by APII and/or its predecessors, subsidiaries or affiliates and/or
obtained as a result of his employment with, or in any of his capacities with,
or rendering of services for, APII and/or its predecessors, subsidiaries or
affiliates, and/or created by Xxxxxxx while employed by and/or rendering
services to or for APII and/or its predecessors, subsidiaries or affiliates.
Xxxxxxx acknowledges that all such APII Records are the property of APII. In
addition, Xxxxxxx shall promptly return in good condition, normal wear and tear
excepted, any and all computer equipment and accessories belonging to and/or
leased by APII and/or its predecessors, subsidiaries or affiliates.
2. TERMINATION OF EMPLOYMENT AGREEMENT. The parties hereby mutually agree
that the Employment Agreement is terminated in its entirety as of the date of
this Agreement, and that Xxxxxxx waives any claim he has or may have under the
Employment Agreement for any payment of salary or accrued vacation time,
receipt of other benefits, reimbursement for any expenses or automobile
allowance; provided, however, that nothing herein shall restrict Xxxxxxx'x
right to elect to continue health benefits in accordance with the Consolidated
Omnibus Budget Reconciliation Act of 1986 ("COBRA").
3. TERMINATION OF STOCK OPTION AGREEMENTS. The parties hereby mutually
agree that the Stock Option Agreements, and any other rights to acquire any
capital stock of APII issued or granted, or discussed or contemplated, to
Xxxxxxx, are terminated in their entirety as of the date of this Agreement.
4. TERMINATION OF SUBSCRIPTION AGREEMENT. The parties hereby mutually
agree that Articles IV and V of the Subscription Agreement are terminated as of
the date of this Agreement.
5. RIGHTS OF INTELLECTUAL PROPERTY. Xxxxxxx acknowledges and agrees that
all patents, licenses, copyrights, tradenames, trademarks, service marks,
planning, marketing and/or creative policies, advertising campaigns, media
campaigns, and budgets, practices, concepts, strategies, and methods of
operation (excluding such budgets, practices, concepts, strategies, and methods
of operation that are standard practices in the toy industries), financial or
business projections, designs, logos, slogans and business plans developed or
created by Xxxxxxx in the course and scope of his employment with APII and/or
any of its subsidiaries or affiliates, either individually or in collaboration
with others, was and is deemed works for hire and the sole and absolute
property of APII. Xxxxxxx agrees that, at APII's request and expense, he will
take all steps necessary to secure the rights thereto to APII by patent,
copyright or otherwise.
6. REPRESENTATIONS AND WARRANTIES.
(A) As an inducement for APII to enter into this Agreement,
Xxxxxxx represents and warrants to APII that (i) during his employment with
APII, he has not committed material breach of any restrictive covenant in
Section 10 of the Employment Agreement, (ii) that he has not assigned or
attempted to assign any right or interest in any claim against APII or any of
its affiliates or subsidiaries to any other person and that no other person has
an interest in such rights
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or claims, whether such claim arises under the Employment Agreement, Stock
Option Agreements, Subscription Agreement, or otherwise, and he has not used or
disclosed his knowledge of APII's business affairs to aide others in
competition with APII.
(B) As an inducement for Xxxxxxx to enter into this Agreement,
APII represents and warrants to Xxxxxxx that (i) APII is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Florida; (ii) APII has the requisite corporate power and authority to
execute and deliver this Agreement and to perform its obligations hereunder;
(iii) the execution, delivery and performance of this Agreement by APII and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all requisite corporate action, and no other corporate
proceedings on the part of APII is necessary to authorize the execution,
delivery or performance of this Agreement; and (iv) APII has adequate capital
under the Florida Business Corporation Act to purchase the Redemption Shares
under Paragraph 7.
7. STOCK REPURCHASE. Provided Xxxxxxx has not revoked this Agreement, and
has delivered written confirmation that he has not revoked this Agreement,
pursuant to Paragraph 17(c) herein, on the seventh (7th) business day after the
date of this Agreement (the "Redemption Date"), APII shall purchase from
Xxxxxxx, and Xxxxxxx sell to APII, 114,286 shares of APII common stock, par
value $0.001 per share, which Xxxxxxx acquired from APII pursuant to the
Subscription Agreement, (the "Redemption Shares") for a total purchase price of
One Hundred Twenty Eight Thousand Dollars ($128,000.00) (the "Redemption
Price"). On the Redemption Date, (i) Xxxxxxx shall deliver to APII the
certificate(s) evidencing the Redemption Shares, with medallion guaranteed
stock powers, endorsed in blank, which, Xxxxxxx represents and warrants to APII
are free and clear of any liens or claims and, and (ii) APII shall deliver to
Xxxxxxx the Redemption Price by wire transfer to such account as designated by
Xxxxxxx.
8. NON-DISPARAGEMENT.
(A) Xxxxxxx shall not communicate, directly or indirectly, any
negative or disparaging comments or information about APII or any of the
current officers, directors, managers, supervisors, executives, employees or
representatives of APII ("APII Agents") or any of APII's subsidiaries and
affiliates concerning the reputation or status of APII's or APII's Agents'
professional abilities or APII's, or any of APII's subsidiary's or affiliate's
business or financial condition. In addition, Xxxxxxx shall inform his
affiliates, agents and representatives ("Xxxxxxx Agents") to comply with these
same terms with respect to APII and the APII Agents, and shall use reasonable
efforts to cause them to comply with such terms, where he has actual knowledge
of their failure to do so."
(B) APII shall not communicate, directly or indirectly, any
negative or disparaging comments or information about Xxxxxxx or any of the
Xxxxxxx Agents concerning the reputation or status of Xxxxxxx'x or the Xxxxxxx
Agents' professional abilities or the business or financial condition of any of
Xxxxxxx, the Xxxxxxx Agents, or any business in which Xxxxxxx is currently, or
in the future, involved. In addition, APII shall inform the APII Agents to
comply with these same terms with respect to Xxxxxxx, the Xxxxxxx Agents, and
any other business in which Xxxxxxx is involved, and shall use reasonable
efforts to cause them to comply with such terms, where APII has actual
knowledge of their failure to do so."
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(C) Notwithstanding the foregoing, nothing contained in
subparagraphs (a) and (b) immediately preceding shall be applicable with
respect to any statements made by a party, where compelled by law to make any
such statements, provided that such statements are true."
(D) In addition to all other remedies, any party that has been
damaged by any statements prohibited by the provisions of this Paragraph 8,
shall be entitled to a temporary and permanent injunction without the necessity
of showing any actual damage, or posting bond.
9. CONFIDENTIALITY OF SEPARATION AGREEMENT.
(A) Xxxxxxx agrees not to disclose to anyone, either directly or
indirectly, any information whatsoever regarding the existence or substance of
this Agreement or the matters which have resulted in it, including those
pertaining to Xxxxxxx'x separation from APII.
(B) APII agrees not to disclose to anyone, either directly or
indirectly, any information whatsoever regarding the existence or substance of
this Agreement or the matters which have resulted in it, including those
pertaining to Xxxxxxx'x separation from APII. If contacted by an outside party,
APII will use its best efforts to have all such inquiries referred to Xxxxxx X.
Xxxxxx (APII's Chief Executive Officer), or any successor Chief Executive
Officer of APII if Xx. Xxxxxx is not available, who shall be instructed to
respond that Xxxxxxx'x termination was by mutual agreement and on an amicable
basis and to confirm Xxxxxxx'x position and period of employment.
(C) If either party is requested or becomes legally compelled or
is required by any law, regulation or order, or by a regulatory body to make
any disclosure that is prohibited or otherwise constrained by this Paragraph 9,
such party will provide the other party with prompt notice of such request so
that it may seek an appropriate protective order or other appropriate remedy.
Subject to the foregoing, such party may furnish that portion (and only that
portion) of such information that, in the written opinion of its counsel, the
other party is legally compelled or is otherwise required to disclose. For
purposes of APII's public disclosure obligations under Federal and state
securities laws, the Rules and Regulation of the Securities and Exchange
Commission and the Nasdaq Stock Market, APII may disclose such information
about this Agreement as, in the opinion of counsel for APII, is necessary to
comply with such laws, rules and regulations.
10. XXXXXXX'X RELEASE OF ALL CLAIMS. Xxxxxxx, on behalf of himself, his
agents, executors, legatees, devisees, administrators, successors, and assigns,
does hereby irrevocably, forever and unconditionally release and forever
discharge (i) APII, and (ii) each of its current executive officers and
directors, and (iii) each of its past, present and future shareholders, agents,
directors, officers, executives, employees, representatives, attorneys in each
of their capacity as such, and (iv) their predecessors, successors, affiliates,
insurers, heirs, executors, administrators and assigns, and all persons acting
by, through, under or in concert with any of them (collectively referred to
herein as the "APII Released Parties"), of and from any and all actions, causes
of action, suits, debts, judgments, charges and expenses (including attorneys'
and paralegal fees and costs at all levels of dispute resolution), of any
nature whatsoever, asserted or unasserted, known or unknown, ("Claims"), which
Xxxxxxx ever had, now has, or hereafter may have against any of the APII
Released Parties; including, without limitation, any Claims in any way arising
out of or
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related to Xxxxxxx'x employment and/or other capacity and/or service as a
director and/or otherwise with APII and/or any of its subsidiary and/or
affiliated entities and/or the termination of his employment and/or other
capacities and/or services with APII and/or its subsidiary and affiliated
entities, regardless of whether any or all of such Claims arises under any
state, federal or foreign statute, ordinance, regulation, order or common law.
The Claims released by Xxxxxxx include, but are not limited to, those under the
Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Section 621 et seq.;
Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. Section
2000e et seq.; the Americans with Disabilities Act of 1990 ("ADA") 42 U.S.C.
Section 12101 et seq.; the Family and Medical Leave Act of 1993 ("FMLA"), 29
U.S.C. Section 2601 et seq.; and the Employee Retirement Income Security Act of
1974 ("ERISA"), 29 U.S.C. Section 1001 et seq. and under any state law of a
similar nature; and as any or all of the foregoing are or may be amended, or
any other federal, state local or foreign statute, rule or ordinance and any
other claims in law or equity. In further expansion of the foregoing releases,
Xxxxxxx releases the APII Released Parties of and from any and all Claims based
on constructive discharge, express, implied or quasi-contract, and breach of
the implied covenant of good faith and fair dealing. In still further expansion
of the foregoing releases, Xxxxxxx releases the APII Released Parties of and
from any and all Claims for fraud of any kind. Expanding the foregoing releases
further still, Xxxxxxx releases the APII Released Parties of and from any and
all Claims for wrongful discharge of any kind (including in violation of public
policy and constructive discharge), infliction of emotional distress, whether
intentional or negligent, defamation, negligence, conspiracy, any and all other
common law torts and discrimination on any basis prohibited by statute, public
policy or otherwise.
11. APII'S RELEASE OF ALL CLAIMS. APII, on behalf of itself and its
subsidiaries, successors and assigns, does hereby irrevocably, forever and
unconditionally release and forever discharge Xxxxxxx and each of his
successors, heirs, executors, administrators and assigns, and all persons
acting by, through, under or in concert with any of them (collectively referred
to herein as the "Xxxxxxx Released Parties"), of and from any and all Claims,
which APII ever had, now has, or hereafter may have against any of the Xxxxxxx
Released Parties; including, without limitation, any Claims in any way arising
out of or related to Xxxxxxx'x employment and/or other capacity and/or service
as a director and/or otherwise with APII and/or any of its subsidiary and/or
affiliated entities and/or the termination of his employment and/or other
capacities and/or services with APII and/or its subsidiary and affiliated
entities, regardless of whether any or all of such Claims arises under any
state, federal or foreign statute, ordinance, regulation, order or common law.
In still further expansion of the foregoing releases, APII releases the Xxxxxxx
Released Parties of and from any and all Claims for fraud of any kind.
12. CLAIMS RELEASED CONSTRUED BROADLY. Xxxxxxx and APII intend that the
provisions of this Agreement regarding the Claims being released by the parties
under the provisions of this Agreement shall be construed as broadly as
possible. However, nothing contained in this Agreement is intended to waive any
claims or rights based on this Agreement or a breach of this Agreement, or
based on conduct or any event that occurs after the effective date of this
Agreement.
13. ASSUMPTION OF RISK OF CHANGE IN FACTS. Each of the parties understands
that the facts under which either of them gives this release herein may prove
to be different than now known or
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believed by him or it, and each of them accepts and assumes the risk thereof
and agrees that the party's respective release shall remain in full force and
effect and not subject to modification, termination or rescission by reason of
any difference in facts.
14. COVENANT NOT TO XXX.
(A) Neither Xxxxxxx nor any person or entity on Xxxxxxx'x behalf
has or shall commence, maintain or prosecute any lawsuit, complaint, action or
proceeding of any kind against any of the APII Released Parties with respect to
any act, omission or other matter in connection with any of the Claims released
under Paragraph 10 occurring up to and including the effective date of this
Agreement. The foregoing notwithstanding, this covenant not to xxx does not
extend to any claim for breach of this Agreement.
(B) Neither APII nor any person or entity on APII's behalf has or
shall commence, maintain or prosecute any lawsuit, complaint, action or
proceeding of any kind against any of the Xxxxxxx Released Parties with respect
to any act, omission or other matter in connection with any of the Claims
released under Paragraph 11 occurring up to and including the effective date of
this Agreement. The foregoing notwithstanding, this covenant not to xxx does not
extend to any claim for breach of this Agreement.
15. RESTRICTION ON COMPETING ACTIVITIES.
(A) Xxxxxxx shall not, until the first anniversary of the date of
this Agreement, directly or indirectly, alone or in conjunction with others,
through subsidiaries or affiliates, joint ventures or other business
arrangements:
(i) develop, aid, consult, own, manage, operate, join,
control, finance or participate in the ownership, management, operation,
control or financing of, or be connected as an officer, director, employee,
consultant or otherwise with, any business or enterprise located anywhere in
the world, engaged in any business that designs, develops, markets,
manufactures, distributes or sells anything substantially similar or directly
competitive to the following products, as such products are described in the
attached catalogs:
- I Dig Excavation Kits -- using toys pre-embedded in
sand-like, clay, plaster or other material and sold as an
activity toy/kit for excavating;
- Xxx Xxx the Jet Plane - a wooden play system that includes
airplanes, buildings and accessories, used in conjunction
with a wooden play system centered on airplanes; or other
toys using the Xxx Xxx the Jet Plane brand;
- Space Voyagers, Ocean Voyagers, et al, - a line of authentic,
educational non-violent action figures, vehicles and
accessories based on science and nature exploration
activities;
- EZ Build - wooden construction projects for children;
- Play & Store - a line of packaged toys marketing the
convenience of container packaging as the unique selling
proposition, where the container is the common value added;
- Climbatron - remote control or mechanical (including wind-up)
toys that scale vertical surfaces; and
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- Drop Zone - parachute toys using parachute material.
Nothing under this Section 15(a)(i) shall prohibit Xxxxxxx from employment (as
an employee, consultant or otherwise) or being a shareholder or director with
any retailer that currently carries any product that is similar or directly
competitive to the APII products set forth on the list above.
(ii) solicit any officers or employees of APII
to terminate their relationships with or to take any action that would have a
material adverse effect on the business of APII;
(iii) induce or attempt to induce any customers,
suppliers or distributors of APII to terminate their relationships with or to
take any action that would have a material adverse effect on the business of
APII;
(iv) collude with Xxxxx Xxxxxxxx and/or Xxxxxxx
Xxxxx, former APII employees, in the inducement to profit from advantageous and
privileged access to APII confidential information during employment; or
(v) contact employees of APII (other than
Xxxxxx X. Xxxxxx (or any successor chief executive officer) or other employees
solely for administrative purposes), during business hours, for any reason.
It is expressly agreed that the limitation under Paragraph 15(a)(i) is not
intended to restrict or prohibit the ownership by Xxxxxxx of stock or other
securities of a publicly-held corporation in which the Xxxxxxx does not possess
beneficial ownership of five (5%) percent or more of the voting capital stock
of corporation or participate in any management or advisory capacity.
(B) In the event that any of the provisions contained in this
Paragraph 15 relating to the period of restriction or the scope of such
restrictions shall be determined by a court of competent jurisdiction to exceed
the maximum periods of time which such court determines to be enforceable, or
to exceed the enforceable scope of such provisions, the period or scope of such
restriction, as the case may be, shall, for purposes of this Agreement, be
deemed to be the maximum time period or maximum scope which such court would
deem valid and enforceable; and
(C) In addition to all other remedies, APII shall be entitled to
a temporary and permanent injunction without the necessity of showing any
actual damage and or a decree for specific performance of this Paragraph 15.
16. CONFIDENTIAL INFORMATION. During Xxxxxxx'x employment and other
service with APII and/or its subsidiary or affiliated entities, he has had
access to confidential and other information proprietary to APII and/or its
subsidiary or affiliated entities, including but not limited to trade secrets,
operations, customer information, customer prospects, vendor information,
sources of supply, strategic plans, inventions, business plans, formulas
processes, designs, methods, techniques, know-how, systems, software programs,
works of authorship, plans, proposals, information about products including
product costs or sale prices, manufacturer and supplier lists, compensation
information, and other proprietary information (the "Confidential
Information"). Xxxxxxx has not and shall not at any time disclose to any person
or entity the Confidential Information acquired during or in connection with
his employment with or in rendering services to
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APII and/or any of its subsidiaries and affiliates without prior written
permission from APII. Xxxxxxx shall keep secret the Confidential Information
and all matters that have been entrusted to him and shall not use or attempt to
use any of the Confidential Information in any manner that may injure or cause
loss or may be calculated to injure or cause loss, whether directly or
indirectly, to APII and/or its subsidiaries and affiliates. The above
restrictions shall not apply to:
(i) information that at the time of disclosure is in the
public domain through no fault of Xxxxxxx;
(ii) information received from a third party outside of
APII that was disclosed without a breach of any confidentiality obligation;
(iii) information approved for release by written
authorization of APII;
(iv) information that may be required to be disclosed by
law or by an order of any court, agency or proceeding, provided that Xxxxxxx
shall provide APII with notice of any such required disclosure once Xxxxxxx has
knowledge of it and will provide all reasonable assistance requested by APII to
obtain an appropriate protective order with respect to such information; or
(v) information known by Xxxxxxx prior to the
commencement of his relationship with APII or developed independently by
Xxxxxxx prior to the period of his relationship with APII, provided that no
Confidential Information is used by Xxxxxxx.
17. KNOWING AND VOLUNTARY AGREEMENT.
(A) Xxxxxxx acknowledges that he has carefully read and
understands all of the provisions and effects of this Agreement; that he is
voluntarily and knowingly entering into this Agreement free of coercion or
duress; and that in agreeing to sign this Agreement, he has not, except for
representations, promises, statements, or explanations made herein or in an
exhibit attached hereto, relied on any representations, promises, agreements,
statements or explanations made by APII or its attorneys concerning the terms
or effects of this Agreement in connection with his decisions to execute the
same.
(B) XXXXXXX REPRESENTS AND WARRANTS THAT HE HAS HAD A FULL AND
COMPLETE OPPORTUNITY TO REVIEW THIS AGREEMENT AND THAT HE HAS BEEN STRONGLY
ADVISED TO SEEK LEGAL COUNSEL PRIOR TO SIGNING THIS AGREEMENT. XXXXXXX
ACKNOWLEDGES THAT HE HAS THE RIGHT TO CONSIDER THIS AGREEMENT FOR TWENTY-ONE
(21) DAYS PRIOR TO SIGNING AND RETURNING IT TO XXXXXX X. XXXXXX, CHIEF
EXECUTIVE OFFICER, ACTION PRODUCTS INTERNATIONAL, INC., 000 XXXXX XXXXXX
XXXXXX, XXXXX 0000, XXXXXXX, XXXXXXX 00000. XXXXXXX REPRESENTS THAT, IF HE
SIGNED THIS AGREEMENT PRIOR TO THE EXPIRATION OF THE TWENTY-ONE (21) DAY
PERIOD, HE HAS FREELY AND VOLUNTARILY WAIVED HIS RIGHT TO CONSIDER THIS
AGREEMENT FOR SUCH PERIOD.
(C) XXXXXXX ALSO ACKNOWLEDGES THAT HE IS AWARE OF AND HAS BEEN
ADVISED OF HIS RIGHT TO REVOKE THIS AGREEMENT FOR A PERIOD OF SEVEN (7) DAYS
AFTER HE SIGNS THIS AGREEMENT BY NOTIFYING, IN WRITING, XXXXXX X. XXXXXX, BY
FACSIMILE TO (000) 000-0000, BY 5 P.M., NEW YORK TIME, ON OR BEFORE THE SEVENTH
(7TH) DAY AFTER HE SIGNS AND RETURNS THE AGREEMENT.
(D) THIS AGREEMENT WILL NOT BECOME EFFECTIVE UNTIL THE SEVEN-DAY
REVOCATION PERIOD HAS EXPIRED AND XXXXXXX HAS NOT OTHERWISE REVOKED THIS
AGREEMENT IN ACCORDANCE
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WITH PARAGRAPH 17(C). APII SHALL HAVE NO OBLIGATIONS UNDER THIS AGREEMENT UNTIL
THIS AGREEMENT HAS BECOME EFFECTIVE.
18. APPLICABLE LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Florida, without regard for
its conflicts of laws principles.
19. INDEMNIFICATION.
(A) DIRECTORS AND OFFICERS INDEMNITY. APII shall, to the extent
not covered by its directors' and officers' insurance policy then in effect,
and to the full extent permitted by law and by APII's articles of incorporation
and by-laws, indemnify Xxxxxxx and hold him harmless for any acts or decisions
made by him while performing his duties as a director, officer and employee,
during the term of his employment and services as a director of APII; provided
that Xxxxxxx acted in good faith and in a manner he reasonably believed to be
in, or not opposed to, the best interests of APII and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
(B) INDEMNIFICATION OF APII.
(i) Xxxxxxx agrees to indemnify, defend and hold
harmless APII and its shareholders, officers, directors, affiliates, agents and
employees (each an "APII Indemnified Party") from and against and in respect of
any and all losses, damages, claims, liabilities, actions, suits, proceedings
and costs and expenses of defense thereof, including reasonable attorneys' fees
(a "Loss"), suffered or incurred by any such party by reason of or arising out
of any breach of any representation, warranty, covenant or agreement of Xxxxxxx
set forth in this Agreement.
(ii) An APII Indemnified Party shall give to Xxxxxxx
prompt written notice of any claim, suit or demand which such APII Indemnified
Party believes will give rise to a claim for indemnification under Paragraph
19(b)(i); provided, however, that the failure of such APII Indemnified Party to
give such prompt written notice shall not affect the liability of Xxxxxxx
hereunder, except to the extent that the rights of Xxxxxxx to defend himself or
to cure or mitigate the damages are actually prejudiced thereby. Thereafter,
such APII Indemnified Party shall furnish to Xxxxxxx, in reasonable detail,
such information as it may have with respect to such claim, action, suit or
proceeding, including copies of any summons, complaint or other pleading which
may have been served upon it or any written claim, demand, invoice, billing or
other document evidencing or asserting the same. Provided Xxxxxxx, within ten
(10) days after receipt of such written notice from such APII Indemnified
Party, shall acknowledge in writing to such APII Indemnified Party, Xxxxxxx'x
assumption of responsibility for defense and indemnification with respect to
such claim, action, suit or proceeding, Xxxxxxx shall have the right to assume
defense of such claim, action, suit or proceedings through counsel selected by
Xxxxxxx at Xxxxxxx'x expense, and to contest or compromise such claim, action,
suit or proceeding. Upon such assumption of defense by Xxxxxxx, such APII
Indemnified Party shall cooperate with Xxxxxxx in Xxxxxxx'x conduct of such
defense to the extent reasonably requested by Xxxxxxx and at Xxxxxxx'x expense.
So long as Xxxxxxx is defending such claim, action, suit or proceeding, such
APII Indemnified Party shall not settle or compromise the same without
Xxxxxxx'x prior written consent, which consent shall not be unreasonably
withheld. Without the
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prior written consent of APII and such APII Indemnified Party, Xxxxxxx shall
not be entitled to settle any claim, action, suit or proceedings the defense of
which has been assumed by Xxxxxxx if such settlement might have a material
adverse effect or impose any material condition or limitation on the business,
operations, prospects or condition (financial or otherwise) conducted by APII.
(C) INDEMNIFICATION OF XXXXXXX.
(i) APII agrees to indemnify, defend and hold harmless
Xxxxxxx and his successors, heirs and assigns (each a "Xxxxxxx Indemnified
Party") from and against and in respect of any and all Losses suffered or
incurred by any such party by reason of or arising out of any breach of any
representation, warranty, covenant or agreement of APII set forth in this
Agreement.
(ii) A Xxxxxxx Indemnified Party shall give to APII
prompt written notice of any claim, suit or demand which such Xxxxxxx
Indemnified Party believes will give rise to a claim for indemnification under
Paragraph 19(c)(i); provided, however, that the failure of such Xxxxxxx
Indemnified Party to give such prompt written notice shall not affect the
liability of APII hereunder, except to the extent that the rights of APII to
defend itself or to cure or mitigate the damages are actually prejudiced
thereby. Thereafter, such Xxxxxxx Indemnified Party shall furnish to APII, in
reasonable detail, such information as it may have with respect to such claim,
action, suit or proceeding, including copies of any summons, complaint or other
pleading which may have been served upon it or any written claim, demand,
invoice, billing or other document evidencing or asserting the same. Provided
APII, within ten (10) days after receipt of such written notice from such
Xxxxxxx Indemnified Party, shall acknowledge in writing to such Xxxxxxx
Indemnified Party APII's assumption of responsibility for defense and
indemnification with respect to such claim, action, suit or proceeding, APII
shall have the right to assume defense of such claim, action, suit or
proceedings through counsel selected by APII at APII's expense, and to contest
or compromise such claim, action, suit or proceeding. Upon such assumption of
defense by APII, such Xxxxxxx Indemnified Party shall cooperate with APII in
APII's conduct of such defense to the extent reasonably requested by APII and
at APII's expense. So long as APII is defending such claim, action, suit or
proceeding, such Xxxxxxx Indemnified Party shall not settle or compromise the
same without APII's prior written consent which consent shall not be
unreasonably withheld.
20. CHANGE, MODIFICATION AND WAIVER. No change or modification of this
Agreement shall be valid unless it is in writing and signed by Xxxxxxx and an
authorized officer of APII. No waiver of any provision of this Agreement shall
be valid unless it is in writing and signed by the party against whom the
waiver is sought to be enforced (in the case of APII, by an authorized officer
of APII). The failure of a party to insist upon strict performance of any
provision of this Agreement in any one or more instances shall not be construed
as a waiver or relinquishment of the right to insist upon strict compliance
with such provision in the future.
21. INTEGRATION. This Agreement and its exhibits constitutes the entire
agreement between APII and Xxxxxxx concerning the subject matters hereof and
supercedes all prior representations, promises and agreements, whether oral or
written, implied or otherwise with respect thereto.
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22. BINDING AGREEMENT. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective officers,
directors, agents, representatives, employees, servants, affiliates, attorneys,
heirs, successors, assigns, or other representatives, if any.
23. SEVERABILITY. Any provision of this Agreement which is adjudged to be
prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without affecting the validity or
enforceability of the remainder of this Agreement.
24. ATTORNEYS' FEES. In the event an action is brought by either party for
breach of by, or to enforce this Agreement, including Paragraph 15, against,
the other party, including arbitration, the prevailing party shall receive his
or its reasonable attorneys and paralegal fees and costs at all levels of
dispute resolution involved as determined by the court or arbitrators, as the
case may be.
25. JURISDICTION OF DISPUTES; WAIVER OF JURY TRIAL. In the event any party
to this Agreement commences any litigation, proceeding or other legal action in
connection with or relating to this Agreement or any matters described or
contemplated herein, with respect to any of the matters described or
contemplated herein or therein, the parties to this Agreement hereby (a) agree
under all circumstances absolutely and irrevocably to institute any litigation,
proceeding or other legal action in a court of competent jurisdiction located
within the County of Orange, Florida, whether a state or federal court; (b)
agree that in the event of any such litigation, proceeding or action, such
parties will consent and submit to personal jurisdiction in such court; (c)
agree to waive to the full extent permitted by law any objection that they may
now or hereafter have to the venue of any such litigation, proceeding or action
in any such court or that any such litigation, proceeding or action was brought
in an inconvenient forum; (d) agree as an alternative method of service to
service of process in any legal proceeding by mailing of copies thereof to such
party at its address set forth herein for communications to such party; (e)
agree that any service made as provided herein shall be effective and binding
service in every respect; and (f) agree that nothing herein shall affect the
rights of any party to effect service of process in any other manner permitted
by law. EACH PARTY HERETO WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY DISPUTE IN
CONNECTION WITH OR RELATING TO THIS AGREEMENT OR ANY MATTERS DESCRIBED OR
CONTEMPLATED HEREIN OR THEREIN, AND AGREE TO TAKE ANY AND ALL ACTION NECESSARY
OR APPROPRIATE TO EFFECT SUCH WAIVER.
26. NOTICES. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered to the recipient by (i) hand, (ii) mailed, first
class certified mail, return receipt, with postage paid, or (iii) a nationally
recognized overnight courier service:
If to APII, to:
Action Products International, Inc.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
with a copy to:
Xxxxx Xxxxxx & Xxxxx, LLP
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000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
If to Xxxxxxx, to:
Xxxxxx X. Xxxxxxx
000 Xxxxx Xxxxx
Xxxxx Xxxx, Xxx Xxxxxx 00000
With a copy to:
Foreht, Last, Ladau, Xxxxxx and Xxxx, LLP
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
27. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument. Execution and delivery of this Agreement by exchange of facsimile
copies bearing the facsimile signature of a party hereto shall constitute a
valid and binding execution and delivery of this Agreement by such party. Such
facsimile copies shall constitute enforceable original documents.
[remainder of page internationally left blank]
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IN WITNESS WHEREOF, the parties have agreed to, and executed, this
Agreement, effective as of the last date written below.
EXECUTIVE:
/s/ XXXXXX X. XXXXXXX
---------------------
Xxxxxx X. Xxxxxxx
Dated: February 7, 2003
APII:
Action Products International, Inc.
By: /s/ XXXXXX X. XXXXXX
--------------------
Xxxxxx X. Xxxxxx, Chief Executive Officer
Dated: February 7, 2003
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EXHIBIT "A"
Form of Letter of Resignation
February 7, 2003
Xxxxxx X. Xxxxxx
Action Products International, Inc.
000 X. Xxxxxx Xxx., Xxxxx 0000
Xxxxxxx, XX 00000
Dear Xxx,
Effective with this notice of February 7, 2003, I hereby resign as an officer
and director of Action Products International, Inc. I wish you and the
organization success in the future.
Sincerely,
Xxxxxx Xxxxxxx
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