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Exhibit 6.18
EMPLOYMENT AGREEMENT
THIS AGREEMENT (this "Agreement") dated as of October 1999 between
MIRACOM CORPORATION, a Nevada corporation (the "Company"), having its principal
place of business located at 000 Xxxx xxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, and
Xxx Xxxxxxx, residing at _______ Xxxxxxxxxx Xxx, Xxxxxxx, XX 00000 (the
"Executive").
W I T N E S S E T H:
WHEREAS, the Executive has US and International experience in
general/sales management, strategic planning, marketing customer service,
business/product development and contract negotiation; and
WHEREAS, in light of the foregoing, the Company desires to employ the
Executive as its Vice President of After Market Operations and the Executive
desires to accept such employment.
NOW, THEREFORE, the parties hereto agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ the Executive
and the Executive hereby agrees to serve the Company on the terms and
conditions set forth herein.
2. TERM.
2.1 Initial Term. The initial Term of Employment under
this Agreement, and the employment of the Executive hereunder, shall commence
on November 1, 1999 (the "Commencement Date") and shall expire on November 1,
1999, 2001 unless sooner terminated in accordance with Section 6 hereof (the
"Initial Term").
2.2 Renewal Terms. At the end of the Initial Term, the
Term of Employment automatically shall renew for successive one year terms
(subject to earlier termination as provided in Section 7 hereof), unless the
Company or the Executive delivers written notice to the other at least ninety
(90) days prior to the Expiration Date of its or his election not to renew the
Term of Employment.
2.3 Term of Employment and Expiration Date. The period
during which the Executive shall be employed by the Company pursuant to the
terms of this Agreement is sometimes referred to in this Agreement as the "Term
of Employment," and the date on which the Term of Employment shall expire
(including the date on which any renewal term shall expire), is sometimes
referred to in this Agreement as the "Expiration Date."
3. COMPENSATION.
3.1 Base Salary. The Executive shall receive a base
salary at the annual rate of One Hundred Thousand Dollars ($100,000.) (the
"Base Salary") during the Term of
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Employment, with such Base Salary payable in installments consistent with the
Company's normal payroll schedule, subject to applicable withholding and other
taxes. The Base Salary shall be reviewed, at least annually, for merit
increases and, by action and in the discretion of the Board of Directors of the
Company (the "Board"), may be increased at any time or from time to time.
3.2 Bonuses or Incentive Compensation. The Executive
shall receive such bonuses or incentive compensation, if any, as the Board may
in its sole and absolute discretion determine or pursuant to any bonus or
incentive compensation plan adopted by the Board. Any bonuses or incentive
compensation payable pursuant to this Subsection 3.2 are sometimes hereinafter
referred to as "Incentive Compensation."
4. EXPENSE REIMBURSEMENT AND OTHER BENEFITS.
4.1 Reimbursement of Expenses. Upon the submission of
proper substantiation by the Executive, and subject to such rules and
guidelines as the Company may from time to time adopt, the Company shall
reimburse the Executive for all reasonable expenses actually paid or incurred
by the Executive during the Term of Employment in the course of and pursuant to
the business of the Company. The Executive shall account to the Company in
writing for all expenses for which reimbursement is sought and shall supply to
the Company copies of all relevant invoices, receipts or other evidence
reasonably requested by the Company.
4.2 Participation in Benefit Programs. The Executive
shall. be entitled to participate IN or receive benefits under all of the
Company's benefit plans in effect on the date hereof or made available in the
future to employees and key management personnel of the Company, including
without limitation, major medical, dental, life and disability insurance,
profit sharing, stock option and deferred compensation plans, subject to the
general eligibility and participation provisions set forth in such plans. With
respect to health `insurance coverage for Executive's immediate family (defined
as Executive's spouse and children), if such coverage is provided by the
Company for its other executive officers, such coverage shall be provided on
the same basis as it is provided to other executive officers of the Company.
4.3 Restricted Stock and Stock Option. Upon Executive's
commencement of employment with the Company, the Executive shall be granted ten
thousand (10,000) shares of restricted (Rule 144) stock (the "Restricted
Stock"), which shall be subject to a Restricted Stock Agreement, the form of
which is attached hereto as Schedule A. The Restricted Stock shall be forfeited
to the Com any should Executive voluntarily terminate without Cause his
employment hereunder prior to May 1, 2000 or be discharged for Cause prior to
May 1, 2000. Further, Executive shall be granted stock options for the purchase
of one hundred twenty thousand (120,000) shares of common stock (the "Stock
Option") at an exercise price of $1.50 share which Stock Option shall be
subject to a separate stock option agreement to be entered into concurrently
herewith. The Stock Option shall become exercisable 33-1/3% six months from the
Commencement Date, 33-1/3% twelve months from the Commencement Date and 33-1/3%
eighteen months from the Commencement Date.
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4.4 Other Benefits. The Executive shall be entitled to
three (3) weeks of vacation each calendar year during the Term of Employment,
to be taken at such times as the Executive and the Company shall mutually
determine and provided that no vacation time shall interfere with the duties
required to be rendered by the Executive hereunder. Employee shall be entitled
to carry over one (1) week of unused vacation from the preceding calendar year.
Employee shall be paid the pro rata portion of his regular base salary and pro
rata share of benefits earned as specified in this agreement during his
vacation period. In the event vacation is not taken or vacation is rolled over
to next year, compensation for such unused vacation up to a maximum of 2 weeks
per calendar year, shall be paid on or before the end of the calendar year
provided employee so requests in writing before November 30 of that calendar
year.
5. DUTIES OF EXECUTIVE. During the Term of Employment under this
Agreement, the Executive shall serve as Vice President of After Market
Operations of the Company, shall diligently perform all services as may be
assigned to him by the Board, and shall exercise such power and authority as
may from time to time be delegated to him by the Board. The Executive shall
devote his full time and attention to the business and affairs of the Company,
render such services to the best of his ability, and use his best efforts to
promote the interests of the Company. It shall not be a violation of this
Agreement for the Executive to (i) serve on corporate, civic or charitable
boards or committees, (ii) deliver lectures, fulfill speaking engagements or
teach at educational institutions, or (iii) manage personal investments, so
long as such activities do not interfere with the performance of the
Executive's responsibilities to the Company in accordance with this Agreement.
6. TERMINATION.
6.1 Termination for Cause Defined. Notwithstanding any
other provision herein, this Agreement shall terminate without any liability to
or upon the Company other than to pay Base Salary for services rendered prior
to the date of termination if Executive's employment is terminated for "Cause."
The following shall constitute grounds for termination of Executive's
employment for Cause: (i) willful or neglect by Executive of his duties which
continues for ten (10) days after written notice of such neglect is provided to
Executive by the Company; (ii) conviction of Executive of any felony, or of any
lesser crime or offense materially and adversely affecting the property,
reputation or goodwill of the Company or its successors; (iii) any material
breach of the terms of this Agreement; or (iv) willful misconduct by Executive
in connection with the performance of his duties.
6.2 Death. In the event of the death of the Executive,
this Agreement shall terminate without any liability to or upon the Company
other than to pay Base Salary for services rendered prior to the date of the
Executive's death, and the pro-rata portion of the Incentive Compensation which
Executive has earned through the date of such termination.
6.3 Disability. The Company shall at all times have the right,
upon written notice to the Executive, to terminate the Term of Employment, if
the Executive shall become disabled as the term "Disability" is defined below.
For purposes of this Agreement, the term "Disability" shall be deemed to have
occurred if Executive becomes entitled to benefits under the
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Company's long term disability insurance plan as then in effect and cannot
substantially perform his duties, or, if the Executive shall as the result of
mental or physical incapacity, illness or disability, become unable to perform
his obligations hereunder for a an aggregate of 90 days in any consecutive
12-month period, or for a period of sixty (60) consecutive days. The date of
the Disability shall be the ninetieth (90th) or the sixtieth (60th) day, as the
case may be. The Company shall have the sole discretion based upon competent
medical advice to determine whether the Executive continues to be disabled. In
the event Executive's employment is terminated because of a Disability,
Executive shall be entitled to receive Executive's Base Salary for services
rendered prior to the date of termination plus (a) only that compensation which
is payable through the disability policy held by the Company or, if no such
policy is in effect, then a severance equal to three (3) months Base Salary,
payable in accordance with the Company's payroll practices, less withholding
and other applicable federal and state deductions, and (b) the pro-rata portion
of the Incentive Compensation which Executive has earned through the date of
termination of employment shall be payable in a lump sum on the termination
date.
6.4 Termination without Cause by Company. In the event
that Executive's employment is terminated without Cause by Company, the Company
will continue to pay Executive his Base Salary, and will continue Executive's
health insurance benefits (and life insurance benefits, if any) as described in
Section 4.2 of this Agreement for the a period of 5 months and reasonable
relocation expenses not to exceed Ten Thousand Dollars ($10,000.) and the
pro-rata portion of the Incentive Compensation which Executive has earned
through the date of termination of employment shall be payable in a lump sum on
the termination date. The Company may terminate Executives employment under
this Subsection 6.4 upon providing to the Executive at least sixty (60) days
prior notice to that effect.
6.5 Voluntary Termination without cause by Executive. If
Executive voluntarily terminates employment with the Company during the Term of
Employment and the Company has not breached this Agreement, or if the Executive
is discharged for Cause, then Executive will not be eligible to receive, and
the Company shall not be obligated to pay Executive any compensation (including
any Incentive Compensation) or provide any benefits which might otherwise be
due Executive hereunder for the remainder of the Term of Employment following
such date of voluntary termination or discharge. In addition to the
aforementioned, if the Executive voluntarily terminates employment with the
Company during the first six (6) months of his employment Executive must
reimburse company the entire amount of the expense incurred by the company to
relocate Executive.
6.6 Voluntary Termination With Cause by the Executive:
In order for Executive to terminate this agreement with cause employee shall
provide company with written notice of the material part of the agreement which
has been breached by the company. The company shall have 30 days following the
receipt of written notice from the Executive to cure said breach. Failure or
refusal to cure shall allow Executive to voluntarily terminate his employment
with the company. If the Executive voluntarily terminates employment with
cause, the Company will continue to pay Executive his Base Salary, and health
insurance benefits (and life insurance benefits, if any) as described in
Section 4.2 of this agreement for a period of 5 months as well as relocation
expenses not to exceed ten thousand dollars ($10,000.) Executive
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shall also be entitled to receive the pro-rata portion of the incentive
Compensation which Executive has earned through the date of termination of
employment which shall be payable in a lump sum within two weeks of Executive
terminations date. The Executive may voluntarily terminate his employment under
this Subsection 6.4 upon providing to the company at least (60) days written
notice.
6.7 Termination with cause by the Company: During the
term of the agreement the company may terminate the Executive employment for
"Cause" (defined below) upon fifteen (15) days' written notice. The Employee's
willful or negligent failure or refusal to comply with the written rules and
regulations of Employer from time to time established by the Board that shall
have been previously delivered to Employee, and that shall not be inconsistent
with the terms or conditions of this Agreement, and Employee shall not have
cured such failure or refusal within fifteen (30) days following receipt of
written notice from Employer of such failure or refusal. The Employee's willful
failure or refusal to perform or Employee's performance in a grossly negligent
manner a material part of his duties pursuant to the provisions of this
Agreement and Employee shall not have cured such failure or refusal within
fifteen (15) days following receipt of written notice from Employer of such
failure or refusal.
6.8 Resignation. Upon any termination of employment
pursuant to this Section 6, the Executive shall be deemed to have resigned as
an officer, and if he was then serving as a director of the Company, as a
director, and if required by the Board, the Executive hereby agrees to
immediately execute a resignation letter to the Board.
7. TERMINATION BY EXECUTIVE. Executive may, at his
option, terminate this Agreement at any time, prior to the expiration of the
Term, upon giving sixty (60) days prior written notice to that effect to the
Company. However, if the Executive voluntarily terminates employment with the
Company during the first six (6) months of Ws employment, Executive must
reimburse company the entire amount of the expense incurred by the company to
relocate Executive.
8. RESTRICTIVE COVENANTS.
8.1 Confidential Information. The Executive hereby
acknowledges and agrees that in the course of his employment he will acquire
knowledge and will have access to information, whether in written, typed or
other form, regarding the business operations of the Company. Specifically, the
following types of information are deemed confidential ("Confidential
Information") and shall not be disclosed or used by the Executive except as
required and authorized in furtherance of the Company's business: specific
prospective customers-of the Company; specific existing customers of the
Company; other individuals and businesses with whom the Company does business;
proprietary information; trade secrets, as defined in Section 688.002(4),
Florida Statute's; financial or corporate records; operational, sales,
promotional, and marketing methods and techniques; computer programs, including
source codes and/or object codes; and/or any other proprietary, competition
sensitive, or technical information or secrets developed with or without the
help of the Executive.
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8.2 Non-disclosure. The Executive shall not, during the
term of his employment, or at any time thereafter, either directly or
indirectly, communicate, publish, disclose, divulge, or use, or authorize
anyone else to communicate, publish, disclose, divulge, or use, for the benefit
of himself or any other person, persons, partnership, association, corporation,
or other entity, any Confidential Information which may be communicated to the
Executive or of which the Executive may be apprised by virtue of his employment
with the Company. Any and all information, knowledge, know-how, and techniques
which the Company designates as confidential shall be deemed confidential for
purposes of this Agreement, except information which the Executive can
demonstrate came to his attention prior to disclosure thereof by the Company;
or which, at or after the time of disclosure by the Company to the Executive,
lawfully had become a part of the public domain through lawful publication or
communication by others.
8.3 Non-competition. The Executive covenants that,
except as otherwise approved in writing by the Company, the Executive shall
not, during the term of this Agreement, and for a continuous uninterrupted
period of twenty-four (24) months commencing upon the expiration or termination
of the Executive's employment relationship with the Company, regardless of the
cause for termination, other than by the Company without Cause (as defined in
Subsection 6.1 hereof) or by Executive with Cause (as defined in Subsection
6.6), individually, or jointly with others, either directly or indirectly, for
himself, or through, on behalf of, or in conjunction with any person, persons,
partnership, association, corporation, or other entity, own, maintain, operate,
engage in, or have any interest in any business enterprise which is the same
as, similar to or competitive with the Company's Business (defined below), and
shall not directly or indirectly act as an officer, director, employee,
partner, contractor, consultant, advisor, principal, agent, or proprietor, or
in any other capacity for, nor lend any assistance (financial, managerial,
consulting or otherwise) to or cooperate with, any such business enterprise;
provided, however, that such provision shall not apply to the Executive's
ownership of Common Stock of the Company or the acquisition by the Executive,
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 Executive does not control, acquire a controlling interest in or
become a member of a group which exercises direct or indirect control of more
than five (5%) percent of any class of capital stock of such corporation. For
purposes of this Subsection 8.3, "Company's Business" shall mean the
development and operation of e-commerce/Internet Portals which are designed for
the selling and the buying of automotive parts. For the purposes of this
subsection 8.3, "competitive with company's business" shall mean, providing any
service, directly or indirectly, to a company whose primary business is
Generated by or through an e-commerce / internet portal which is designed in
part for the selling of automotive parts and components. This includes but is
not limited to Original Equipment Manufactures or Suppliers of automotive parts
a/k/a Tier one manufactures and suppliers or any third party.
8.4 Non-solicitation of Employees and Clients. Any
potential customers (as defined above in this Section 8.1) that Executive has
had prior relations before initial employment date at Company will be provided
upon initial employment date and included in this
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agreement as Exhibit B, shall not be regarded in this Section 8.1 or constitute
impermissible diversion or solicitation of business under this contract, or
impermissible or improper use of Confidential Information. Except as defined in
Section 8.2 & 8.3, and more-specifically information to compete with Company's
business and/or the development and operation of e-commerce/Internet portals
which are designed for selling and the business of automotive parts. the
Executive specifically acknowledges that he will have access to Confidential
Information, including, without limitation, prospective and existing customers
or customer lists of the Company. The Executive covenants and agrees that
during the term of this Agreement, and for a continuous uninterrupted period of
eighteen months (18) months, commencing upon the expiration or termination of
the Executive's relationship with the Company, except as other-wise approved in
writing by the Company, the Executive shall not, either directly or indirectly,
for himself, or through, on behalf of, or in conjunction with any person,
persons, partnership, association, corporation, or entity:
(a) Divert or attempt to divert or solicit any
prospective or existing customer of the Company to any competitor by direct or
indirect inducement or otherwise; or
(b) Employ or seek to employ any person who is
at that time employed by the Company, any affiliate of the Company, or
otherwise directly or indirectly induce or solicit such person to leave his or
her employment.
8.5 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 Executive 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 Executive 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 Executive for hire for the Company, the Executive
agrees to assign, and automatically does assign at the time of creation of the
Work Product, without any requirement of further consideration, any right,
title, or interest the Executive may have in such Work Product. Upon the
request of the Company, the Executive 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.
8.6 Reasonably Necessary. The Company and the Executive
agree that the Confidential Information set forth in Subsection 8.1 and the
substantial relationships with the Company's specific prospective and existing
customers and vendors: (i) are valuable, special, and a unique asset of the
Company; (ii) have provided and will hereafter provide the Company with a
substantial competitive advantage in the operation of its business; and (iii)
are a legitimate business interest of the Company. The Company and the
Executive also agree that the existence of these legitimate business interests
justifies the need for the restrictive covenants set forth in this Section 8,
and the restrictive covenants are reasonably necessary to protect the Company's
legitimate business interests.
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8.7 Reasonable Restrictions. The Executive agrees and
acknowledges; (a) that the geographical and time limitations contained in this
Agreement are reasonable and properly required for the adequate protection of
the business interests of the Company; and (b) the restrictions contained in
this Section 8 (including without limitation the length of the term of the
provisions of this Section 8) are not overbroad, overlong, or unfair and are
not the result of overreaching, duress or coercion of any kind. The Executive
further acknowledges and confirms that his full uninhibited and faithful
observance of each of the covenants contained in this Section 8 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 Executive
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 this Section 8. It is
agreed by the Executive that if any portion of the restrictions contained in
this Agreement are held to be unreasonable, arbitrary, or against public
policy, then the restriction shall be considered divisible, both as to the time
and to the geographical area, with each month of the specified period being
deemed a separate period of time, and each country or portion thereof of the
specified area being deemed a separate geographical area, so that the lesser
period of time or geographical area shall remain effective, so long as the same
is not unreasonable, arbitrary, or against public policy. The parties hereto
agree that in the event any court of competent jurisdiction determines the
specified period or the specified geographical area of the restricted territory
to be unreasonable, arbitrary, or against public policy, a lesser time period
or geographical area which is determined to be reasonable, non-arbitrary, and
not against public policy may be enforced against the Company.
8.8 Continuity of Restrictions. If the Executive shall
violate any of the terms or covenants contained herein, and if any court action
is instituted by the Company to prevent or enjoin such violation, then the
period of time during which the terms or covenants of this Agreement shall
apply, as provided in this Agreement, shall be lengthened by a period of time
equal to the period between the date of the initial breach of the terms or
covenants contained in this Agreement, whether or not the Company had knowledge
of the breach, and the date on which the decree of the court disposing, of the
issues upon the merits shall become final and not subject to further appeal.
8.9 Books and Records. All notes, data, reference
material, sketches, drawings, memoranda, files, documents, specifications and
any records in any way relating to any of the Confidential Information or to
the Company's business, whether prepared by the Executive or otherwise coming
into the Executive's possession, shall remain the exclusive property of the
Company and shall not be removed from the premises of the Company under any
circumstances whatsoever without the prior written consent of the Company. Upon
the request of the Company, or absent such request, upon the termination of the
Executive's employment with the Company for any reason, the Executive shall
immediately return the Company all such property, materials and any and all
copies thereof in the Executive's possession.
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8.10 Definition of Company. Solely for purposes of this
Section 8, 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.
8.11 Survival. The provisions of this Section 8 shall
survive the termination of this Agreement, as applicable.
9. INJUNCTION. The Executive agrees that a violation or a breach
of the terms, covenants, or provisions contained in Section 8 of this Agreement
would cause irreparable injury to the Company, and that the remedy at law for
any violation or breach would be inadequate and would be difficult to
ascertain, and therefore, in the event of the violation or breach, or
threatened violation or breach of any such terms, covenants, or provisions
contained in this Agreement, the Company shall have the independent right to
enjoin the Executive from any threatened or actual activities in violation
thereof The Executive hereby consents and agrees that temporary and permanent
injunctive relief may be granted in any proceedings which might be brought to
enforce any such terms, covenants, or provisions without the necessity of the
Company providing proof of actual damages or the posting of a bond. In the
event the Company does apply for such an injunction, the Executive shall not
raise as a defense thereto that the Company has an adequate remedy at law. Such
right to injunction shall be cumulative and in addition to whatever other
remedies the Company may have at law or in equity.
10. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Orange County, Florida, in accordance with the Rules of the American
Arbitration Association then in effect (except to the extent that the
procedures outlined below differ from such rules). Within thirty (30) days
after written notice by either party has been given that a dispute exists and
that arbitration is required, each party must select an arbitrator and those
two (2) arbitrators shall promptly, but in no event later than thirty (30) days
after their selection, select a third arbitrator. The parties agree to act as
expeditiously as possible to select arbitrators and conclude the dispute. The
selected arbitrators must render their decision in writing. The cost and
expenses of the arbitration and of enforcement of any award in any court shall
be borne by the non-prevailing party. If advances are required, each party will
advance one-half of the estimated fees and expenses of the arbitrators.
Judgment may be entered on the arbitrators' award in any court having
jurisdiction. Although arbitration is contemplated to resolve disputes
hereunder, either party may proceed to court to obtain an injunction to protect
its rights hereunder, the parties agreeing that either could suffer irreparable
harm by reason of any breach of this Agreement. Pursuit of an injunction shall
not impair arbitration on all remaining issues.
11. RELOCATION: LOCATION OF PERFORMANCES.
(a) The parties acknowledge that the Executive is
required to change his place of residence from North Carolina to the Orlando,
Florida metropolitan area to perform hereunder. The Company shall pay all the
costs and expenses of the Executive and his family
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connected with such relocation, including reasonable moving and travel expenses
and reasonable temporary dwelling costs (for a period not to exceed 60 days),
all such expenses not to exceed $7,500 for moving expenses and $4,500 for
temporary dwelling costs.
(b) The Executive's services will be performed in the
Seminole County, Florida area. The Executive's performance hereunder shall be
within such area or its environs. The parties acknowledge, however, that the
Executive may be required to travel in connection with the performance of his
duties hereunder.
12. ASSIGNMENT. This Agreement may not be assigned by any party
hereto-, provided that the Company will assign this Agreement: (a) to an
affiliate so long as such affiliate assumes the Company's obligations
hereunder; provided that no such assignment shall discharge the Company of its
obligations herein, or (b) in connection with a merger or consolidation
involving the Company or a sale of substantially all its assets to the
surviving corporation or purchaser as the case may be, so long as such assignee
assumes the Company's obligations hereunder.
13. SEVERABILITY. If all or any portion of a covenant or
provision in this Agreement is held invalid, unreasonable or unenforceable by a
court or agency having valid Jurisdiction in an unappealed final decision to
which the Company is a party, the remaining covenants and provisions shall
remain valid and enforceable. The Executive expressly agrees to be bound by any
lesser covenant or provision subsumed within the terms of such covenant or
provision that imposes the maximum duty permitted by law, as if the resulting
covenant or provision were separately stated in, and made a part of this
Agreement.
14. DAMAGES: ATTORNEYS' FEES. Nothing contained herein shall be
construed to prevent the Company or the Executive from seeking and recovering
from the other damages sustained by either or both of them as a result of its
or his breach of any term or provision of this Agreement. In the event that
either party hereto brings suit for the collection of any damages visions of
this Agreement, then the prevailing party shall pay all reasonable court costs
and attorneys' fees of the other.
15. GOVERNING LAW. The validity, interpretation and enforcement
of this Agreement shall be governed by and construed in accordance with the
local laws of the State of Florida (without giving effect to its conflicts of
laws provisions), and to the exclusion of the law of any other forum, without
regard to the Jurisdiction in which any action or special proceeding may be
instituted.
16. ENTIRE AGREEMENT. This Agreement contains and represents the
entire and complete understanding and agreement concerning and in reference to
the employment arrangement between the parties hereto. The parties hereto agree
that no prior statements, representations, promises, agreements, instructions,
or understandings, written or oral, pertaining to this Agreement, other than
those specifically set forth and stated herein, shall be of any force or
effect. This Agreement may be changed only by an agreement in writing signed by
a party against whom enforcement of any waiver, chance, modification, extension
or discharge is sought.
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17. NOTICES. All notices required or permitted to be given
hereunder shall be in writing and shall be personally delivered by courier,
sent by registered or certified mail, return receipt requested or sent by
confirmed facsimile transmission addressed as set forth herein. Notices
personally delivered, sent by facsimile or sent by overnight courier shall be
deemed given on the date of delivery and notices mailed in accordance with the
foregoing shall be deemed given upon the earlier of receipt by the addressee,
as evidenced by the return receipt thereof, or three (3) days after deposit in
the U.S. mail. Notice shall be sent: (a) if to the Company, addressed to 0 Xxxx
Xxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention: President, or at such subsequent
address of the headquarters of the Company; and (b) if to the Executive, to his
address as reflected on the payroll records of the Company, or to such other
address as either party hereto may from time to time give notice of to the
other.
18. BENEFITS; BINDING EFFECT. This Agreement shall be for the
benefit of and binding upon the parties hereto and their respective heirs,
personal representatives, legal representatives, successors and, where
applicable, assigns, including, without limitation, any successor to the
Company, whether by merger, consolidation, sale of stock, sale of assets or
otherwise.
19. WAIVERS. The waiver by either party hereto of a breach or
violation of any term or provision of this Agreement shall not operate nor be
construed as a waiver of any subsequent breach or violation.
20. SECTION HEADINGS. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
21. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in
this Agreement is intended, or shall be construed, to confer upon or give any
person other than the Company, the parties hereto and their respective heirs,
personal representatives, legal representatives, successors and assigns, any
rights or remedies under or by reason of this Agreement.
22. INDEMNIFICATION.
(a) Subject to limitations imposed by law, the Company
shall indemnify and hold harmless the Executive to the fullest extent permitted
by law from and against any and all claims, damages, expenses (including
attorneys' fees), judgments, penalties, fines, settlements, and all other
liabilities incurred or paid by him in connection with the investigation,
defense, prosecution, settlement or appeal of any threatened, pending, or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative and to which the Executive was or is a party or is threatened
to be made a party by reason of the fact that the Executive is or was an
officer, employee or agent of the Company, or by reason of anything done or not
done by the Executive in any such capacity or capacities, provided that the
Executive acted in good faith, in a manner that was not grossly negligent or
constituted willful misconduct and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The Company also shall pay any and all expenses (including
attorney's fees) incurred
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by the Executive as a result of the Executive being called as a witness in
connection with any matter involving the Company and/or any of its officers or
directors.
(b) The Company shall pay any expenses (including
attorneys' fees), judgments, penalties, fines, settlements, and other
liabilities incurred by the Executive in investigating, defending, settling, or
appealing any action, suit or proceeding described in this Section 22 in
advance of the final disposition of such action, suit or proceeding. The
Company shall promptly pay the amount of such expenses to the Executive, but in
no event later than ten (10) days following the Executive's delivery to the
Company of a written request for an advance pursuant to this Section 22,
together with a reasonable accounting of such expenses.
(c) The Executive hereby undertakes and agrees to repay
to the Company any advances made pursuant to this Section 22 if and to the
extent that it shall ultimately be found that the Executive is not entitled to
be indemnified by the Company for such amounts.
(d) The Company shall make the advances contemplated by
this Section 22 regardless of the Executive's financial ability to make
repayment, and regardless whether indemnification of the Executive by the
Company will ultimately be required. Any advances and undertakings to repay
pursuant to this Section 22 shall be unsecured and interest-free.
(e) The provisions of this Section 22 shall survive the
termination of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Employment
Agreement as of the date first above written.
COMPANY:
MIRACOM CORPORATION., a Nevada corporation
By: /s/ Xxxxx Xxxxx
---------------------------------------
Xxxxx Xxxxx
Chairman/Co-CEO/President
EXECUTIVE:
/s/ Xxx Xxxxxxx
------------------------------------------
Name: Xxx Xxxxxxx
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