EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This Employment Agreement ("AGREEMENT") is made as of August 25, 2015 (the
"EFFECTIVE DATE"), by and between V GEORGIO INC., a Florida corporation (the
"COMPANY") and XXXXXX X. XXXXXX, XX., an individual (the "EXECUTIVE").
R E C I T A L
WHEREAS, the Company desires to employ the Executive and the Executive
desires to be employed by the Company on the terms contained in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. POSITION AND DUTIES. The Executive shall serve as the Chief Executive
Officer of the Company reporting to the Company's Board of Directors (the
"BOARD"). The Executive shall perform those services customary to that office
and such other lawful duties that may be reasonably assigned to him from time to
time by the Board, provided those duties are consistent with the Executive's
position and authority. The Executive further agrees to use his best efforts to
promote the interests of the Company and to devote his full business time and
energies to the business and affairs of the Company.
2. TERM. This Agreement shall be effective from the Effective Date through
the third anniversary thereof (the "INITIAL TERM"). Thereafter, this Agreement
shall renew for successive one-year terms (each, a "RENEWAL Term" and together
with the Initial Term, collectively the "TERM"), unless notice of non-renewal
(which shall not be deemed to be a termination of this Agreement) is given by
either party at least sixty (60) days prior to the expiration of the Initial
Term or any Renewal Term.
3. COMPENSATION AND RELATED MATTERS.
(a) BASE SALARY. The Executive's annual base salary shall one hundred
twenty thousand ($120,000.00) (the "BASE SALARY"). The Base Salary shall be
payable in accordance with the Company's normal payroll procedures in effect
from time to time. The Base Salary shall be reviewed at least annually and may
be increased by the Board or its compensation committee (the "COMMITTEE"), if
any, from time to time during the Term.
(b) ANNUAL BONUS. During the Term, the Executive may be paid a performance
bonus to the extent earned, based on criteria established by the Board or the
Committee from time to time during the Term (the "BONUS"). The amount of any
Bonus and the performance criteria for earning the Bonus, if any for any
subsequent fiscal year shall be determined by the Board or the Committee, in
good faith, no later than sixty (60) days after the commencement of the relevant
fiscal year. The Executive's Bonus for a bonus period shall be determined by the
Board or the Committee after the end of the applicable bonus period and be paid
to the Executive in the year following the year to which the Bonus relates when
annual bonuses for that year are paid to other senior executives of the Company
generally.
(c) INCENTIVE PLANS. The Executive shall be entitled to participate in all
bonus plans, policies, practices and programs adopted by the Company and
applicable generally to other senior executives of the Company, in accordance
with the terms of such plans (if any).
(d) EQUITY INCENTIVE PLANS. The Executive shall be entitled to participate
in any and all plans providing for awards of equity or instruments convertible
into equity adopted by the Company and applicable generally to other senior
executives of the Company, in accordance with the terms of such plans (if any).
(e) BUSINESS EXPENSES. The Executive shall be entitled to receive prompt
reimbursement for all reasonable business expenses incurred by him in performing
services hereunder, in accordance with the policies and procedures then in
effect and established by the Company for its senior executive officers.
(f) OTHER BENEFITS. The Executive shall be entitled to participate in all
insurance, pension, savings and retirement plans, practices, policies and
programs applicable generally to other senior executives of the Company (if any)
and shall be eligible for participation in and shall receive all benefits under
insurance welfare benefit plans, practices, policies and programs provided by
the Company to the extent applicable generally to other senior executives of the
Company (if any).
(g) VACATION. The Executive shall be entitled to accrue up fifteen (15)
paid vacation days in each year, which shall be accrued ratably. The Executive
shall also be entitled to all paid holidays given by the Company to its
executives.
(h) WITHHOLDING. All amounts payable to the Executive under this SECTION 3
shall be subject to all required federal, state and local withholding, payroll
and insurance taxes.
(i) BOARD DISCRETION. Nothing in this SECTION 3 shall obligate the Board to
implement any particular benefit plan or prevent the Board from amending or
terminating any benefit plan implemented.
4. TERMINATION. The Executive's employment may be terminated and this
Agreement terminated under the following circumstances:
(a) DEATH. The Executive's employment hereunder shall terminate upon his
death.
(b) DISABILITY. The Company may terminate the Executive's employment if the
Executive becomes subject to a Disability. For purposes of this Agreement,
"DISABILITY" means the Executive is unable to perform the essential functions of
his position as Chief Executive Officer, with or without a reasonable
accommodation, for a period of ninety (90) consecutive calendar days or one
hundred eighty (180) non-consecutive calendar days within any rolling twelve
(12) month period.
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(c) TERMINATION BY COMPANY FOR CAUSE. The Company may terminate the
Executive's employment for Cause. For purposes of this Agreement, "CAUSE" means
the Executive's: (i) willful failure to follow the directions communicated to
him by the Board that are legal and consistent with his position and duties as
Chief Executive Officer; (ii) breach of a fiduciary duty owed by the Executive
to the Company or its shareholders; (iii) willful misconduct or gross misconduct
which is materially detrimental to the Company; (iv) conviction, plea of NOLO
CONTENDERE, guilty plea, or confession to any felony or any crime based upon an
act of fraud, misappropriation or embezzlement; or (v) a material breach of this
Agreement; provided, that, the bases set forth in (i), (ii), (iii) and (v), to
the extent curable, shall not constitute Cause unless the Company has provided
the Executive with written notice of the acts or omissions giving rise to a
termination of his employment for Cause and the Executive fails to correct the
act or omission within thirty (30) days after receiving the Company's notice
(the "EXECUTIVE CURE PERIOD").
(d) TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company may terminate the
Executive's employment at any time without Cause upon thirty (30) days prior
written notice.
(e) TERMINATION BY THE EXECUTIVE. The Executive may terminate his
employment at any time without Good Reason for any reason, upon thirty (30) days
prior written notice, provided however, the Company may accelerate the date of
such termination to any date following the receipt of such written notice.
(f) TERMINATION BY THE EXECUTIVE FOR GOOD REASON. The Executive may
terminate his employment for Good Reason. For purposes of this Agreement, "GOOD
REASON" means: (i) a material reduction in the Executive's Base Salary without
the Executive's Consent; (ii) a material diminution in the Executive's
responsibilities as Chief Executive Officer; (iii) the assignment of duties to
the Executive materially inconsistent with his position as Chief Executive
Officer; or (iv) the Company's material breach of this Agreement; provided that,
within ninety (90) days of the Company's act or omission giving rise to a
resignation for Good Reason, the Executive notifies the Company in writing of
the act or omission, the Company fails to correct the act or omission within
thirty (30) days after receiving the Executive's written notice (the "COMPANY
CURE PERIOD") and the Executive actually terminates his employment within sixty
(60) days after the date the Company receives the Executive's notice.
(g) TERMINATION DATE. The "TERMINATION DATE" means: (i) if the Executive's
employment is terminated by his death under SECTION 4(A), the date of his death;
(ii) if the Executive's employment is terminated on account of his Disability
under SECTION 4(B), the date on which the Company provides the Executive a
written termination notice; (iii) if the Company terminates the Executive's
employment for Cause under SECTION 4(C), the date on which the Company provides
the Executive a written termination notice, unless the circumstances giving rise
to the termination are subject to the Executive Cure Period, in which case the
date on which the Company provides the Executive a written termination notice
following the end of the Executive Cure Period; (iv) if the Company terminates
the Executive's employment without Cause under SECTION 4(D), thirty (30) days
after the date on which the Company provides the Executive a written termination
notice; (v) if the Executive resigns his employment without Good Reason under
SECTION 4(E), thirty (30) days after the date on which the Executive provides
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the Company a written termination notice or such earlier date of termination
determined by the Company as provided for therein; and (vii) if the Executive
resigns his employment with Good Reason under SECTION 4(F), the date on which
the Executive provides the Company a written termination notice following the
end of the Company Cure Period.
5. COMPENSATION UPON TERMINATION.
(a) TERMINATION BY THE COMPANY FOR CAUSE, UPON THE EXECUTIVE'S DEATH OR
DISABILITY, BY THE EXECUTIVE WITHOUT GOOD REASON. If the Executive's employment
with the Company is terminated pursuant to SECTIONS 4(A), (B), (C) or (E), the
Company shall pay or provide to the Executive (or to his authorized
representative or estate) the following amounts through the Termination Date:
any earned but unpaid Base Salary, unpaid expense reimbursements, any earned but
unpaid Annual Bonus and any vested benefits the Executive may have under any
employee benefit plan of the Company (the "ACCRUED OBLIGATIONS") on or before
the time required by law but in no event more than thirty (30) days after the
Termination Date.
(b) TERMINATION BY THE COMPANY WITHOUT CAUSE, BY THE EXECUTIVE WITH GOOD
REASON. If the Executive's employment is terminated by the Company without Cause
as provided in SECTION 4(D) or the Executive terminates his employment for Good
Reason as provided in SECTION 4(F), then the Executive shall be entitled to the
following:
(i) The Company shall pay the Executive the Accrued Obligations earned
through the Termination Date (payable at the time provided for in SECTION 5(A)).
(ii) The Company shall pay the Executive a pro-rata portion of the
Executive's Bonus for the fiscal year in which the Executive's termination
occurs based on actual results for such year (determined by multiplying the
amount of such bonus which would be due for the full fiscal year by a fraction,
the numerator of which is the number of days during the fiscal year of
termination that the Executive is employed by the Company and the denominator of
which is 365) payable at the same time bonuses for such year are paid to other
senior executives of the Company.
(iii) The Company shall pay the Executive his Base Salary then in effect
for a period of six (6) months after the Termination Date in accordance with the
Company normal payroll practices in effect on the Termination Date.
(iv) Any and all outstanding equity-based incentive awards subject to
vesting criteria, shall vest as provided in the applicable award agreement or
incentive plan.
(v) Subject to the Executive's timely election of continuation coverage
under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA"), the Company shall reimburse the Executive the monthly premium payable
to continue his and his eligible dependents' participation in the Company's
group health plan (to the extent permitted under applicable law and the terms of
such plan) which covers the Executive (and the Executive's eligible dependents)
for a period of six (6) months from the Termination Date, provided that the
Executive is eligible and remains eligible for COBRA coverage; and provided,
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further, that in the event that the Executive obtains other employment that
offers group health benefits, such continuation of coverage by the Company shall
immediately cease.
6. RELEASE; PAYMENT. The payments and benefits provided for in SECTIONS
5(B) shall be conditioned on the Executive executing and delivering to the
Company a full release of all claims that the Executive may have against the
Company, and its directors, officers, employees and agents in a form reasonably
acceptable to the Company (the "RELEASE"). The Release must become enforceable
and irrevocable on or before the sixtieth (60th) day following the Termination
Date. If the Executive fails to execute and deliver the Release, he shall be
entitled to the Accrued Obligations only and no other benefits under SECTION
5(B). The continued payment of base salary provided under SECTION 5(B) (III)
shall be paid in accordance with the Company's normal payroll practices and
shall commence on the next payroll date falling after the date the Release
becomes enforceable and irrevocable.
7. SECTION 409A COMPLIANCE.
(a) All in-kind benefits provided and expenses eligible for reimbursement
under this Agreement shall be provided by the Company or incurred by the
Executive during the time periods set forth in this Agreement. All
reimbursements shall be paid as soon as administratively practicable, but in no
event shall any reimbursement be paid after the last day of the taxable year
following the taxable year in which the expense was incurred. The amount of
in-kind benefits provided or reimbursable expenses incurred in one taxable year
shall not affect the in-kind benefits to be provided or the expenses eligible
for reimbursement in any other taxable year. Such right to reimbursement or
in-kind benefits is not subject to liquidation or exchange for another benefit.
(b) To the extent that any of the payments or benefits provided for in
SECTION 5(B) are deemed to constitute non-qualified deferred compensation
benefits subject to Xxxxxxx 000X xx xxx Xxxxxx Xxxxxx Internal Revenue Code (the
"CODE"), the following interpretations apply to SECTION 5: Any termination of
the Executive's employment triggering payment of benefits under SECTION 5(B)
must constitute a "SEPARATION FROM SERVICE" under Section 409A(a)(2)(A)(i) of
the Code and Treas. Reg. ss.1.409A-1(h) before distribution of such benefits can
commence. To the extent that the termination of the Executive's employment does
not constitute a separation of service under Section 409A(a)(2)(A)(i) of the
Code and Treas. Reg. ss.1.409A-1(h) (as the result of further services that are
reasonably anticipated to be provided by the Executive to the Company or any of
its parents, subsidiaries or affiliates at the time the Executive's employment
terminates), any benefits payable under SECTION 5 that constitute deferred
compensation under Section 409A of the Code shall be delayed until after the
date of a subsequent event constituting a separation of service under Section
409A(a)(2)(A)(i) of the Code and Treas. Reg. ss.1.409A-1(h). For purposes of
clarification, this SECTION 6(B) shall not cause any forfeiture of benefits on
the Executive's part, but shall only act as a delay until such time as a
"SEPARATION FROM SERVICE" occurs. Further, if the Executive is a "SPECIFIED
EMPLOYEE" (as that term is used in Section 409A of the Code and regulations and
other guidance issued thereunder) on the date his separation from service
becomes effective, any benefits payable under SECTION 5 that constitute
non-qualified deferred compensation under Section 409A of the Code shall be
delayed until the earlier of (i) the business day following the six-month
anniversary of the date his separation from service becomes effective, and (ii)
the date of the Executive's death, but only to the extent necessary to avoid
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such penalties under Section 409A of the Code. On the earlier of (i) the
business day following the six-month anniversary of the date his separation from
service becomes effective, and (ii) the Executive's death, the Company shall pay
the Executive in a lump sum the aggregate value of the non-qualified deferred
compensation that the Company otherwise would have paid the Executive prior to
that date under SECTION 5(B) of this Agreement. It is intended that each
installment of the payments and benefits provided under SECTION 5(B) of this
Agreement shall be treated as a separate "PAYMENT" for purposes of Section 409A
of the Code. Neither the Company nor the Executive shall have the right to
accelerate or defer the delivery of any such payments or benefits except to the
extent specifically permitted or required by Section 409A of the Code.
8. CONFIDENTIAL INFORMATION.
(a) As used in this Agreement, "CONFIDENTIAL INFORMATION" means information
belonging to the Company which is of value to the Company in the course of
conducting its business and the disclosure of which could result in a
competitive or other disadvantage to the Company. Confidential Information
includes, without limitation, financial information, reports, and forecasts;
inventions, improvements and other intellectual property; trade secrets;
know-how; designs, processes or formulae; software; market or sales information
or plans; customer lists; business plans, prospects and opportunities (such as
possible acquisitions or dispositions of businesses or facilities) which have
been discussed or considered by the management of the Company. Confidential
Information includes information developed by the Executive in the course of the
Executive's employment by the Company, as well as other information to which the
Executive may have access in connection with his employment. Confidential
Information also includes the confidential information of others with which the
Company has a business relationship. Notwithstanding the foregoing, Confidential
Information does not include: (i) information which now or in the future comes
into the public domain, unless due to breach of the Executive's duties under
this SECTION 8(A); (ii) information which is disclosed to the Executive by
others who are not, to the Executive's actual knowledge, under obligation of
non-disclosure to the Company; (iii) information which is independently
developed by the Executive without breach of the Executive's duties under this
SECTION 8(A); or (iv) information which is disclosed by the Company to others
without obligation of confidentiality.
(b) At all times, both during the Executive's employment with the Company
and after its termination, the Executive will keep in confidence and trust all
Confidential Information, and will not use or disclose for his own benefit or
the benefit of any other Person any such Confidential Information without the
written consent of the Company, except as may be necessary in the ordinary
course of performing the Executive's duties to the Company.
9. DOCUMENTS, RECORDS, ETC. All documents, records, data, apparatus,
equipment and other physical property, whether or not pertaining to Confidential
Information, which are furnished to the Executive by the Company or are produced
by the Executive in connection with the Executive's employment will be and
remain the sole property of the Company. The Executive will return to the
Company all such materials and property as and when requested by the Company. In
any event, the Executive will return all such materials and property immediately
upon termination of the Executive's employment for any reason. The Executive
will not retain any such material or property or any copies thereof after the
termination of his employment.
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10. NON-COMPETITION. From the Effective Date through the second anniversary
of the Termination Date, regardless of the reason for such termination, or the
expiration date of this Agreement (the "RESTRICTED PERIOD") the Executive will
not, directly or indirectly, whether as owner, partner, shareholder, consultant,
agent, employee, co-venturer or otherwise, engage, prepare to engage,
participate, assist or invest in any Competing Business anywhere in the United
States the Caribbean or any other geographic area in which the Company is
actively distributing its products or providing its services as of the
Termination Date or the date of expiration of this Agreement. Notwithstanding
the foregoing, (i) the Executive may own up to two percent (2%) of the
outstanding stock of a publicly held corporation which constitutes or is
affiliated with a Competing Business; and (ii) the Executive may be employed by
a large organization which is engaged in a Competing Business as its non-primary
business, so long as the Executive is not involved with or assisting such
Competing Business, and so long as the Executive does not breach his obligations
regarding Confidential Information.
11. NO SOLICITATION. During the Restricted Period, the Executive shall not,
directly or indirectly, take any of the following actions, and, to the extent
the Executive owns, manages, operates, controls, is employed by or participates
in the ownership, management, operation or control of, or is connected in any
manner with any business, the Executive shall use his best efforts to ensure
that such business does not take any of the following actions:
(a) persuade or attempt to persuade any Customer, Prospective Customer or
Supplier to cease doing business with the Company, or to reduce the amount of
business it does with the Company;
(b) solicit or service for himself or for any Person the business of a
Customer, Prospective Customer or Supplier in order to provide goods or services
that are competitive with the goods and services provided by the Company;
(c) persuade or attempt to persuade any Service Provider to cease providing
services to the Company; or
(d) solicit for hire or hire for himself or for any third party any Service
Provider.
(e) The following definitions are applicable to this SECTION 11:
(i) "COMPETING BUSINESS" means the development, manufacture, marketing and
sale of alcoholic beverages and any other business in which the Company becomes
engaged following the Effective Date.
(ii) "CUSTOMER" means any Person that purchased goods or services from the
Company at any time within two (2) years prior to the date of the solicitation
prohibited by SECTIONS 11(A) or (B).
(iii) "PROSPECTIVE CUSTOMER" means any Person with whom the Company met or
to whom the Company presented for the purpose of soliciting the Person to become
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a Customer of the Company within six (6) months prior to the date of the
solicitation prohibited by SECTIONS 11(A) or (B).
(iv) "SERVICE PROVIDER" means any Person who is an employee or independent
contractor of the Company or the Company or who was within twelve (12) months
preceding the solicitation prohibited by SECTIONS 11(C) or (D) an employee or
independent contractor of the Company or the Company.
(v) "SUPPLIER" means any Person that sold goods or services to the Company
at any time within twelve (12) months prior to the date of the solicitation
prohibited by SECTIONS 11(A) or (B).
(vi) "PERSON" means an individual, a sole proprietorship, a corporation, a
limited liability company, a partnership, an association, a trust, or other
business entity, whether or not incorporated.
12. INTELLECTUAL PROPERTY.
(a) All creations, inventions, ideas, designs, copyrightable materials,
trademarks, and other technology and rights (and any related improvements or
modifications), whether or not subject to patent or copyright protection
(collectively, "CREATIONS"), relating to any activities of the Company which are
conceived by the Executive or developed by the Executive relating to the
development, manufacture, marketing and sale of alcoholic beverages, whether
conceive prior to or curing the course of his employment with the Company,
whether conceived alone or with others and whether or not conceived or developed
during regular business hours, and if based on Confidential Information, after
the termination of the Executive's employment, shall be the sole property of the
Company and, to the maximum extent permitted by applicable law, shall be deemed
"WORKS MADE FOR HIRE" as that term is used in the United States Copyright Act.
(b) To the extent, if any, that the Executive retains any right, title or
interest with respect to any Creations delivered to the Company or related to
his employment with the Company, the Executive hereby grants to the Company an
irrevocable, paid-up, transferable, sub-licensable, worldwide right and license:
(i) to modify all or any portion of such Creations, including, without
limitation, the making of additions to or deletions from such Creations,
regardless of the medium (now or hereafter known) into which such Creations may
be modified and regardless of the effect of such modifications on the integrity
of such Creations; and (ii) to identify the Executive, or not to identify his,
as one or more authors of or contributors to such Creations or any portion
thereof, whether or not such Creations or any portion thereof have been
modified. The Executive further waives any "MORAL" rights, or other rights with
respect to attribution of authorship or integrity of such Creations that he may
have under any applicable law, whether under copyright, trademark, unfair
competition, defamation, right of privacy, contract, tort or other legal theory.
(c) The Executive will promptly inform the Company of any Creations. The
Executive will also allow the Company to inspect any Creations he conceives or
develops during the Restricted Period to determine if they are based on
Confidential Information. The Executive shall (whether during his employment or
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after the termination of his employment) execute such written instruments and do
other such acts as may be necessary in the opinion of the Company or its counsel
to secure the Company's rights in the Creations, including obtaining a patent,
registering a copyright, or otherwise (and the Executive hereby irrevocably
appoints the Company and any of its officers as his attorney in fact to
undertake such acts in his name). The Executive's obligation to execute written
instruments and otherwise assist the Company in securing its rights in the
Creations will continue after the termination of his employment for any reason.
The Company shall reimburse the Executive for any out-of-pocket expenses (but
not attorneys' fees) he incurs in connection with his compliance with this
SECTION 12(C).
13. ACKNOWLEDGEMENT. The Executive understands that the restrictions set
forth in this Agreement are intended to protect the Company's interest in its
Confidential Information, business, goodwill and past, present and future
employee, vendor and customer relationships, and agrees that such restrictions
are reasonable and appropriate for this purpose.
14. INDEMNIFICATION. During the Term and thereafter, the Company shall
indemnify and hold the Executive and the Executive's heirs and representatives
harmless, to the maximum extent permitted by law, against any and all damages,
costs, liabilities, losses and expenses (including reasonable attorneys' fees)
as a result of any claim or proceeding (whether civil, criminal, administrative
or investigative), or any threatened claim or proceeding (whether civil,
criminal, administrative or investigative), against the Executive that arises
out of or relates to the Executive's service as an officer, director or
employee, as the case may be, of the Company, or the Executive's service in any
such capacity or similar capacity with any affiliate of the Company or other
entity at the Company's request, both prior to and after the Effective Date, and
to promptly advance to the Executive or the Executive's heirs or representatives
such expenses, including litigation costs and attorneys' fees, upon written
request with appropriate documentation of such expense upon receipt of an
undertaking by the Executive or on the Executive's behalf to repay such amount
if it shall ultimately be determined that the Executive is not entitled to be
indemnified by the Company. During the Term and thereafter, the Company also
shall provide the Executive with coverage under its current directors' and
officers' liability policy to the same extent that it provides such coverage to
its other executive officers. If the Executive has any knowledge of any actual
or threatened action, suit or proceeding, whether civil, criminal,
administrative or investigative, as to which the Executive may request indemnity
under this provision, the Executive will give the Company prompt written notice
thereof; provided that the failure to give such notice shall not affect the
Executive's right to indemnification. The Company shall be entitled to assume
the defense of any such proceeding and the Executive will use reasonable efforts
to cooperate with such defense. To the extent that the Executive in good faith
determines that there is an actual or potential conflict of interest between the
Company and the Executive in connection with the defense of a proceeding, the
Executive shall so notify the Company and shall be entitled to separate
representation at the Company's expense by counsel selected by the Executive
(provided that the Company may reasonably object to the selection of counsel
within ten (10) business days after notification thereof) which counsel shall
cooperate, and coordinate the defense, with the Company's counsel and minimize
the expense of such separate representation to the extent consistent with the
Executive's separate defense.
15. SURVIVAL. The provisions of SECTIONS 8, 9, 10, 11, 12 and 14 of this
Agreement shall survive its expiration or termination.
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16. DISPUTES.
(a) The parties agree to resolve any dispute arising under or relating to
the interpretation or enforcement of this Agreement, the Executive's employment
or the termination of the Executive's employment before the Florida state courts
of Broward County, Florida or the United States District Court for the Southern
District of Florida, and hereby consent to the exclusive jurisdiction of such
courts. Accordingly, with respect to any such court action, the Executive and
the Company each: (i) submits to the personal jurisdiction of these courts; (ii)
consents to service of process under the notice provisions set forth in SECTION
21 of this Agreement; (iii) waives any other requirement (whether imposed by
statute, rule of court, or otherwise) with respect to personal jurisdiction or
service of process; and (iv) waives any objection to jurisdiction based on
improper venue or improper jurisdiction.
(b) Notwithstanding anything else provided in this Agreement, the Executive
agrees that it would be difficult to measure any damages caused to the Company
which might result from any breach by the Executive of SECTIONS 8, 9, 10, 11 and
12 of this Agreement. Accordingly, if the Executive breaches or proposes to
breach, any term of SECTIONS 8, 9, 10, 11 and 12 of this Agreement, the Company
shall be entitled, in addition to all other remedies that it may have, to a
temporary and preliminary injunction or other appropriate equitable relief to
restrain any such breach without showing or providing any actual damage to the
Company from any court having competent jurisdiction over the Executive.
(c) BOTH THE COMPANY AND THE EXECUTIVE HEREBY WAIVE ANY RIGHT TO A TRIAL BY
JURY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE FEDERAL OR STATE LAW.
(d) The prevailing party shall be entitled to reasonable attorneys' fees
and costs from the non-prevailing party in connection with any action filed
under this SECTION 16.
17. INTEGRATION. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior
agreements between the parties concerning such subject matter.
18. SUCCESSORS. This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal representatives, executors,
administrators, heirs, distributees, devisees and legatees. In the event of the
Executive's death after his termination of employment but prior to the
completion by the Company of all payments due him under this Agreement, the
Company shall continue such payments to the Executive's beneficiary designated
in writing to the Company prior to his death (or to his estate, if the Executive
fails to make such designation). The Company shall require any successor to the
Company to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place.
19. ENFORCEABILITY. If any portion or provision of this Agreement
(including, without limitation, any portion or provision of any section of this
Agreement) shall to any extent be declared illegal or unenforceable by a court
of competent jurisdiction, then the remainder of this Agreement, or the
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application of such portion or provision in circumstances other than those as to
which it is so declared illegal or unenforceable, shall not be affected thereby,
and each portion and provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
20. WAIVER. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
21. NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by a nationally recognized overnight courier service or by
certified mail, postage prepaid, return receipt requested, to the Executive at
the last address the Executive has filed in writing with the Company or, in the
case of the Company, at its main offices, attention of the Chief Financial
Officer. Notices shall be effective on receipt, if delivered by hand, the next
business day, if sent by overnight courier service or on the fifth (5th)
business day after mailing, if sent by mail.
22. AMENDMENT. This Agreement may be amended or modified only by a written
instrument signed by the Executive and by a duly authorized representative of
the Company.
23. GOVERNING LAW. This is a Florida contract and shall be construed under
and be governed in all respects by the laws of Florida for contracts to be
performed in that state and without giving effect to the conflict of laws
principles of Florida or any other state.
24. "COMPANY" DEFINED. As used in this Agreement, the term "COMPANY" shall
mean the Company, its parent, subsidiaries and divisions.
25. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, including by facsimile or electronic transmission, each of which
when so executed and delivered shall be taken to be an original; but such
counterparts shall together constitute one and the same document.
(CONTINUED ON FOLLOWING PAGE)
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
on the date and year first above written.
THE COMPANY:
V GEORGIO, INC.
By: /s/ Xxxxxxx XxXxxx
---------------------------------------------
Xxxxxxx XxXxxx, President
THE EXECUTIVE:
/s/ Xxxxxx X. Xxxxxx, Xx.
------------------------------------------------
Xxxxxx X. Xxxxxx, Xx.
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