AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.31
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT DESCRIBES THE BASIC LEGAL AND ETHICAL
RESPONSIBILITIES THAT YOU ARE REQUIRED TO OBSERVE AS AN EXECUTIVE EXPOSED TO HIGHLY SENSITIVE
TECHNOLOGY AND STRATEGIC INFORMATION. CONSULT WITH YOUR LEGAL COUNSEL IF ALL THE TERMS AND
PROVISIONS OF THIS AGREEMENT ARE NOT FULLY UNDERSTOOD BY YOU.
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made as of the 29th day of
December, 2008, by and between XXXXX ENTERPRISES, INCORPORATED, a Florida corporation (the
“Company”), and Xxxxx X. Xxxxxx (the “Executive”).
WITNESSETH:
WHEREAS, the Company desires to assure itself of the Executive’s continued employment in an
executive capacity;
WHEREAS, the Executive is currently employed by the Company subject to the terms and
conditions of the Employment Agreement dated April 4, 2006 (the “Prior Agreement”);
WHEREAS, the parties now desire to amend and restate the Prior Agreement to, among other
things, bring the terms of the Prior Agreement into compliance with the requirements of Section
409A of the Internal Revenue Code of 1986, as amended (the “Code”); and
WHEREAS, the Executive desires to be employed by the Company on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto covenant and agree as follows:
1. EMPLOYMENT AND DUTIES. Subject to the terms and conditions of this Agreement, the Company
shall employ the Executive during the Term (as hereinafter defined) in such management capacities
as may be designated from time to time by the Company’s Chief Executive Officer and/or the Chief
Executive Officer’s designee. The Executive accepts such employment and agrees to devote his/her
best efforts and entire business time, skill, labor, and attention to the performance of such
duties. The Executive agrees to promptly provide a description of any other commercial duties or
pursuits engaged in by the Executive to the Company’s Chief Executive Officer. If the Company’s
Chief Executive Officer determines in good faith that such activities conflict with the Executive’s
performance of his/her duties hereunder, the Chief Executive Officer shall notify Executive within
thirty (30) days and the
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Executive shall promptly cease such activities to the extent as directed by the Chief Executive
Officer. If the Chief Executive Officer does not provide such notice, Executive shall be free to
engage in such commercial duties or pursuits. It is acknowledged and agreed that such description
shall be made regarding any such activities in which the Executive owns more than 5% of the
ownership of the organization or which may be in violation of Section 5 hereof, and that the
failure of the Executive to provide any such description shall enable the Company to terminate the
Executive for Cause (as provided in Section 6(c) hereof). The Company agrees to hold any such
information provided by the Executive confidential and not disclose the same to any person other
than a person to whom disclosure is reasonably necessary or appropriate in light of the
circumstances. In addition, the Executive agrees to serve without additional compensation if
elected or appointed to any office, or position, including as a director, of the Company or any
subsidiary or affiliate of the Company; provided, however, that the Executive shall be entitled to
receive such benefits and additional compensation, if any, that is paid to executive officers of
the Company in connection with such service.
2. TERM. Subject to the terms and conditions of this Agreement, including, but not limited
to, the provisions for termination set forth in Section 6 hereof, the employment of the Executive
under this Agreement shall commence on the effective date hereof and shall continue until
terminated as provided herein (such term shall herein be defined as the “Term”). The Executive
agrees that some portions of this Agreement, including the Sections entitled “Confidential
Information,” “Covenant Not-To-Compete And No Solicitation,” “Termination,” and “Arbitration of
Disputes,” will remain in force after the termination of this Agreement.
3. COMPENSATION.
(a) Base Salary and Bonus. As compensation for the Executive’s services under this
Agreement, the Executive shall receive and the Company shall pay a weekly base salary set
forth on Exhibit “A”. Such base salary may be increased but not decreased during the Term
in the Company’s discretion based upon the Executive’s performance and any other factors the
Company deems relevant. Such base salary shall be payable in accordance with the policy
then prevailing for the Company’s executives. In addition to such base salary, the
Executive shall be entitled during the Term to a performance bonus and shall be eligible to
participate in and receive payments or awards from all other bonus and other incentive
compensation, stock option and restricted stock plans as may be adopted by the Company, all
as determined by the Compensation Committee of the Board of Directors in its sole
discretion, and in each case payable to Executive in accordance with the terms and
conditions of the applicable plan.
(b) Payments. All amounts paid pursuant to this Agreement shall be subject to
withholding or deduction by reason of the Federal Insurance Contribution Act, federal income
tax, state and local income tax, if any, and comparable laws and regulations.
(c) Other Benefits. The Executive shall be reimbursed by the Company for all
reasonable and customary travel and other business expenses incurred by the Executive in the
performance of the Executive’s duties hereunder in accordance with the Company’s standard
policy regarding expense verification practices. The Executive shall
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be entitled to that number of weeks paid vacation per year that is available to other
executive officers of the Company in accordance with the Company’s standard policy regarding
vacations and such other fringe benefits as may be set forth on Exhibit “A” and shall be
eligible to participate in such pension, life insurance, health insurance, disability
insurance, and other executive benefits plans, if any, which the Company may from time to
time make available to its executive officers generally. Benefits under such plans, if any,
shall be paid or provided to Executive in accordance with the terms and conditions of the
applicable plan.
4. CONFIDENTIAL INFORMATION.
(a) The Executive has acquired and will acquire information and knowledge respecting
the intimate and confidential affairs of the Company, including, without limitation,
confidential information with respect to the Company’s technical data, research and
development projects, methods, products, software, financial data, business plans, financial
plans, customer lists, business methodology, processes, production methods and techniques,
promotional materials and information, and other similar matters treated by the Company as
confidential (the “Confidential Information”). Accordingly, the Executive covenants and
agrees that during the Executive’s employment by the Company (whether during the Term hereof
or otherwise) and thereafter, the Executive shall not, without the prior written consent of
the Company, disclose to any person, other than a person to whom disclosure is reasonably
necessary or appropriate in connection with the performance by the Executive of the
Executive’s duties hereunder, any Confidential Information obtained by the Executive while
in the employ of the Company.
(b) The Executive agrees that all memoranda; notes; records; papers or other documents;
computer disks; computer, video or audio tapes; CD-ROMs; all other media and all copies
thereof relating to the Company’s operations or business, some of which may be prepared by
the Executive; and all objects associated therewith in any way obtained by the Executive
shall be the Company’s property. This shall include, but is not limited to, documents;
computer disks; computer, video and audio tapes; CD-ROMs; all other media and objects
concerning any technical data, methods, products, software, research and development
projects, financial data, financial plans, business plans, customer lists, contracts, price
lists, manuals, mailing lists, advertising materials; and all other materials and records of
any kind that may be in the Executive’s possession or under the Executive’s control. The
Executive shall not, except for the Company’s use, copy or duplicate any of the
aforementioned documents or objects, nor remove them from the Company’s facilities, nor use
any information concerning them except for the Company’s benefit, either during the
Executive’s employment or thereafter. The Executive covenants and agrees that the Executive
will deliver all of the aforementioned documents and objects, if any, that may be in the
Executive’s possession to the Company upon termination of the Executive’s employment, or at
any other time at the Company’s request.
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(c) In any action to enforce or challenge these Confidential Information provisions,
the prevailing party is entitled to recover its attorney’s fees and costs.
5. COVENANT NOT-TO-COMPETE AND NO SOLICITATION. Executive recognizes that the Company is in
the business of employing individuals to provide specialized and technical services to the
Company’s Clients. The purpose of these Covenant Not-to-Compete and No Solicitation provisions are
to protect the relationship which exists between the Company and its Clients while Executive is
employed and after Executive leaves the employ of the Company. The consideration for these
Covenant Not-to-Compete and No Solicitation provisions is the Executive’s employment with the
Company.
(a) Executive acknowledges the following:
(1) The Company expended considerable resources in obtaining contracts with its
Clients;
(2) The Company expended considerable resources to recruit and hire employees
who could perform services for its Clients;
(3) Through his/her employ with the Company, Executive will develop a
substantial relationship with the Company’s existing or potential Clients,
including, but not limited to, being the sole or primary contact between the Client
and the Company;
(4) Executive will be exposed to valuable confidential business information
about the Company, its Clients, and the Company’s relationship with its Clients;
(5) By providing services on behalf of the Company, Executive will develop and
enhance the valuable business relationship between the Company and its Clients;
(6) The relationship between the Company and its Clients depends on the quality
and quantity of the services Executive performs;
(7) Through employment with the Company, Executive will increase his/her
opportunity to work directly for the Clients or for a competitor of the Company; and
(8) The Company will suffer irreparable harm if Executive breaches these
Covenant Not-to-Compete and No Solicitation provisions of this Agreement.
(b) Executive agrees that:
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(1) The relationship between the Company and its Clients (developed and
enhanced when the Executive performs services on behalf of the Company) is a
legitimate business interest for the Company to protect;
(2) The Company’s legitimate business interest is protected by the existence
and enforcement of these Covenant Not-to-Compete and No Solicitation provisions;
(3) The business relationship which is created or exists between the Company
and its Client, or the goodwill resulting from it, is a business asset of the
Company and not the Executive; and
(4) Executive will not seek to take advantage of opportunities which result
from his/her employment with the Company and that entering into the Agreement
containing Covenant Not-to-Compete and No Solicitation provisions is reasonable to
protect the Company’s business relationship with its Clients.
(c) Restrictions on Executive. During the Term of this Agreement and for the greater of
one (1) year or such other period during which Executive may receive Liquidated Damages
hereunder, after the termination of this Agreement, for whatever reason, whether such
termination was by the Company or the Executive, voluntarily or involuntarily, and whether
with or without cause, Executive agrees that he/she shall not, as a principal, employer,
stockholder, partner, agent, consultant, independent contractor, employee, or in any other
individual or representative capacity:
(1) Directly or indirectly engage in, continue in, or carry on the business of
the Company or any business substantially similar thereto, including owning or
controlling any financial interest in any corporation, partnership, firm, or other
form of business organization which competes with or is engaged in or carries on any
aspect of such business or any business substantially similar thereto;
(2) Consult with, advise, or assist in any way, whether or not for
consideration of any kind, any corporation, partnership, firm, or other business
organization which is now, becomes, or may become a competitor of the Company in
any aspect of the Company’s business during the Executive’s employment with the
Company, including, but not limited to, advertising or otherwise endorsing the
products of any such competitor or loaning money or rendering any other form of
financial assistance to or engaging in any form of transaction whether or not on an
arm’s length basis with any such competitor;
(3) Provide or attempt to provide or solicit the opportunity to provide or
advise others of the opportunity to provide any services of the type Executive
performed for the Company or the Company’s Clients (regardless of whether and how
such services are to be compensated, whether on a salaried, time and materials,
contingent compensation, or other basis) to or for the benefit of any
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Client (i) to which Executive has provided services in any capacity on behalf
of the Company, or (ii) to which Executive has been introduced to or about which
the Executive has received information through the Company or through any Client
from which Executive has performed services in any capacity on behalf of the
Company;
(4) Retain or attempt to retain, directly or indirectly, for itself or any
other party, the services of any person, including any of the Company’s employees,
who were providing services to or on behalf of the Company while Executive was
“employed by the Company and to whom Executive has been introduced or about whom
Executive has received information through the Company or through any Client for
which Executive has performed services in any capacity on behalf of the Company;
(5) Engage in any practice, the purpose of which is to evade the provisions of
this Agreement or to commit any act which is detrimental to the successful
continuation of or which adversely affects the business or the Company; provided,
however, that the foregoing shall not preclude the Executive’s ownership of not more
than 2% of the equity securities of a company whose securities are registered under
Section 12 of the Securities Exchange Act of 1934, as amended;
(6) For purpose of these Covenant Not-to-Compete and No Solicitation
provisions, Client includes any subsidiaries, affiliates, customers, and clients of
the Company’s Clients. The Executive agrees that the geographic scope of this
Covenant Not-to-Compete shall extend to the geographic area where the Company’s
Clients conduct business at any time during the Term of this Agreement. For
purposes of this Agreement, “Clients” means any person or entity to which the
Company provides or has provided within a period of one (1) year prior to the
Executive’s termination of employment, labor, materials or services for the
furtherance of such entity’s or person’s business or any person or entity that
within such period of one (1) year the Company has pursued or communicated with for
the purpose of obtaining business for the Company.
(d) Enforcement. These Covenant Not-to-Compete and No Solicitation provisions shall be
construed and enforced under the laws of the State of Florida. In the event of any breach
of this Covenant Not-to-Compete, the Executive recognizes that the remedies at law will be
inadequate, and that in addition to any relief at law which may be available to the Company
for such violation or breach and regardless of any other provision contained in this
Agreement, the Company shall be entitled to equitable remedies (including an injunction) and
such other relief as a court may grant after considering the intent of this Section 5. It
is further acknowledged and agreed that the existence of any claim or cause of action on the
part of the Executive against the Company, whether arising from this Agreement or otherwise,
shall in no way constitute a defense to the enforcement of this Covenant Not-to-Compete, and
the duration of this Covenant Not-to-Compete shall be extended in an amount which equals the
time period
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during which the Executive is or has been in violation of this Covenant Not-to-Compete.
In the event a court of competent jurisdiction determines that the provisions of this
Covenant Not-to-Compete are excessively broad as to duration, geographic scope, prohibited
activities or otherwise, the parties agree that this covenant shall be reduced or curtailed
only to the extent necessary to render it enforceable.
(e) In an action to enforce or challenge these Covenant Not-to-Compete and No
Solicitation provisions, the prevailing party is entitled to recover its attorney’s fees and
costs.
(f) By signing this Agreement, the Executive acknowledges that he/she understands the
effects of these Covenant Not-to-Compete and No Solicitation provisions and agrees to abide
by them.
6. TERMINATION
(a) Death. The Executive’s employment hereunder shall terminate upon his/her death.
(b) Disability. If during the Term of this Agreement the Executive becomes physically
or mentally disabled in accordance with the terms and conditions of any disability insurance
policy covering the Executive, or, if due to such physical or mental disability the
Executive becomes unable for a period of more than six (6) consecutive months to perform
his/her duties hereunder on substantially a full-time basis as determined by the Company in
its sole reasonable discretion, the Company may, at its option, terminate the Executive’s
employment hereunder upon not less than thirty (30) days’ written notice so long as the
terms of any disability insurance policy then in effect provide for Executive to receive
disability payments from that date forward.
(c) Cause. The Company may terminate the Executive’s employment hereunder for Cause
effective immediately upon notice. For purposes of this Agreement, the Company shall have
“Cause” to terminate the Executive’s employment hereunder: (i) if the Executive engages in
conduct which has caused or is reasonably likely to cause demonstrable and serious injury to
Company; (ii) if the Executive is convicted of a felony as evidenced by a binding and final
judgment, order, or decree of a court of competent jurisdiction; (iii) for the Executive’s
failure or refusal to perform his/her duties or responsibilities hereunder as determined by
the Company’s Chief Executive Officer in good faith, if such failure or refusal continues
for a period of ten (10) days after written notice of the same to the Executive; (iv) for
gross incompetence; (v) for the Executive’s violation of this Agreement, including, without
limitation, Section 5 hereof; (vi) for chronic absenteeism; (vii) for use of illegal drugs;
(viii) for insobriety by the Executive while performing his or her duties hereunder; and
(ix) for any act of dishonesty or falsification of reports, records, or information
submitted by the Executive to the Company.
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(d) Termination by the Company for Convenience. Subject to the Company’s obligation to
pay Liquidated Damages in accordance with the terms and conditions of this Agreement, the
Company may terminate Executive’s employment hereunder at any time, for the Company’s
convenience and without reason, by delivering written notice of termination to the
Executive.
(e) Payments Upon Termination. In the event of a termination of the Executive’s
employment, all payments and Company benefits to the Executive hereunder, except the payment
of Liquidated Damages (if any) provided below, shall immediately cease and terminate. In
the event the Company terminates the Executive’s employment pursuant to Section 6(d) hereof,
and such termination constitutes an “involuntary separation from service” within the meaning
of Treasury Regulations Section 1.409A-1(n)(1), the Company shall pay the Executive an
amount equal to the Liquidated Damages defined in this Section 6(e) in lieu of actual
damages for such termination. If the Executive’s employment terminates or is terminated for
any reason other than as specified in the preceding sentence, the Executive shall
not be entitled to any Liquidated Damages. Notwithstanding anything to the contrary
herein contained, and in addition to any other compensation which the Executive may be
entitled to receive pursuant to this Agreement, the Executive shall receive all compensation
and other benefits to which he/she was entitled under this Agreement or otherwise as an
executive of the Company through the termination date, payable to Executive in accordance
with this Agreement or the applicable plan. The “Liquidated Damages” amount, if due as
provided above, shall be equal to the weekly amount stated as Base Salary on Exhibit “A”
multiplied by fifty two (52). Except as provided in Section 6(g)(2), the amount of
Liquidated Damages shall be paid biweekly in equal installments over a fifty two (52)
period, commencing immediately upon termination of employment.
(f) Condition Precedent to Receipt of Liquidated Damages. Executive expressly agrees
that in the event of a termination of this Agreement, Executive will execute an agreement
containing waiver and release provisions in form and substance acceptable to the Company.
Executive agrees and acknowledges that the execution of such an agreement upon termination
of employment is a condition precedent to the obligation of the Company to pay any
Liquidated Damages hereunder. Executive acknowledges that the waiver and release provisions
required by the Company will provide for the release and waiver of important rights and/or
claims that Executive might have against the Company at the time of termination of this
Agreement.
(g) Section 409A Provisions.
(1) Separation from Service. To the extent necessary to comply with Section 409A of the
Code, references to “termination of employment,” “separation from service” or variations
thereof in this Agreement shall mean the Executive’s “separation from service” from his/her
employer within the meaning of Section 409A(a)(2)(A)(i) of the Code and the default rules of
Treasury Regulations Section 1.409A-1(h). For this purpose, Executive’s “employer” is the
Company and every entity or other person which collectively with the Company constitutes a
single service recipient (as that term is
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defined in Treasury Regulations Sections 1.409A-1(g)) as the result of the application
of the rules of Treasury Regulations Sections 1.409A-1(h)(3).
(2) Notwithstanding anything to the contrary in this Agreement, if Executive is a
Specified Employee (as defined below) on the date of Executive’s separation from service
(the “Severance Date”), to the extent that Executive is entitled to receive any benefit or
payment upon such separation from service under this Agreement that constitutes deferred
compensation within the meaning of Section 409A of the Code before the date that is six (6)
months after the Severance Date, such benefits or payments shall not be provided or paid to
Executive on the date otherwise required to be provided or paid. Instead, all such amounts
shall be accumulated and paid in a single lump sum to Executive on the first business day
after the date that is six (6) months after the Severance Date (or, if earlier, within
fifteen (15) days following Executive’s date of death). If Executive is required to pay for
a benefit that is otherwise required to be provided by the Company under this Agreement by
reason of this Section 6(g)(2), Executive shall be entitled to reimbursement for such
payments on the first business day after the date that is six (6) months after the Severance
Date (or, if earlier, within fifteen (15) days following Executive’s date of death). All
benefits or payments otherwise required to be provided or paid on or after the date that is
six (6) months after the Severance Date shall not be affected by this Section 6(g)(2) and
shall be provided or paid in accordance with the payment schedule applicable to such benefit
or payment under this Agreement. Prior to the imposition of the six month delay as set
forth in this Section 6(g)(2), it is intended that (i) each installment under this Agreement
be regarded as a separate “payment” for purposes of Section 409A of the Code, and (ii) all
benefits or payments provided under this Agreement satisfy, to the greatest extent possible,
the exemptions from the application of Section 409A of the Code provided under Treasury
Regulations Sections 1.409A-1(b)(4) (short-term deferral) or 1.409A-1(b)(9) (certain
separation pay plans). This Section 6(g)(2) is intended to comply with the requirements of
Section 409A(a)(2)(B)(i) of the Code.
(3) For purposes of this Agreement, “Specified Employee” means a “specified employee”
of the service recipient that includes the Company (as determined under Treasury Regulations
Sections 1.409A-1(g)) within the meaning of Section 409A(a)(2)(B)(i) of the Code and
Treasury Regulations Section 1.409A-1(i), as determined in accordance with the procedures
adopted by such service recipient that are then in effect, or, if no such procedures are
then in effect, in accordance with the default procedures set forth in Treasury Regulations
Section 1.409A-1(i).
7. NOTICE. For purposes of this Agreement, notices and all other communications provided for
herein shall be in writing and shall be deemed to have been duly given when hand-delivered, sent by
telecopier, facsimile transmission, or other electronic means of transmitting written documents (as
long as receipt is acknowledged) or mailed by United States certified or registered mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Executive, to the address set forth on the signature page.
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If to the Company:
|
Xxxxx Enterprises, Incorporated | |
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| Xxxxx, Xxxxxxx 00000 | ||
| Attention: Sr. VP of Human Resources | ||
with a copy to: |
||
Xxxxx Enterprises, Incorporated |
||
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| Xxxxx, Xxxxxxx 00000 | ||
| Attention: General Counsel |
or to such other address as either party may have furnished to the other in writing in accordance
herewith, except that a notice of change of address shall be effective only upon receipt.
8. ENFORCEMENT AND GOVERNING LAW. It is stipulated that a breach by Executive of the
restrictive covenants set forth in Sections 4 and 5 of this Agreement will cause irreparable damage
to Company or its Clients, and that in the event of any breach of those provisions, Company is
entitled to injunctive relief restraining Executive from violating or continuing a violation of the
restrictive covenants as well as other remedies it may have. Additionally, such covenants shall be
enforceable against the Executive’s heirs, executors, administrators and legal representatives, and
enforceable by Company’s successors or assigns.
The validity, interpretation, construction, and performance of this Agreement shall be
governed by the internal laws of the State of Florida. Any litigation to enforce this Agreement
shall be brought in the state or federal courts of Hillsborough County, Florida, which is the
principal place of business for Company and which is considered to be the place where this
Agreement is made. Both parties hereby consent to such courts’ exercise of personal jurisdiction
over them.
9. ARBITRATION OF DISPUTES.
(a) Duty to Arbitrate. Except for any claim by the Company to enforce the restrictive
covenants set forth in Sections 4 and 5 above, Company and Executive agree to resolve by
binding arbitration any claim or controversy arising out of or related to Executive’s
employment by Company or this Agreement, to include all matters directly or indirectly
related to your recruitment, employment or termination of employment by the Company
including, but not limited to claims involving laws against discrimination whether brought
under federal and/or state law, and/or claims involving co-employees but excluding workers
compensation claims, whether such claim is based in contract, tort, statute, or any other
legal theory, including any claim for damages, equitable relief, or both. The duty to
arbitrate under this Section extends to any claim by or against any officer, director,
shareholder, employee, agent, representative, parent, subsidiary, affiliate, heir, trustee,
legal representative, successor, or assign of either party making or defending any claim
that would otherwise be arbitrable under this Section. However, this
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Section shall not be interpreted to preclude either party from petitioning a court of
competent jurisdiction for temporary injunctive relief, solely to preserve the status quo
pending arbitration of the claim or controversy, upon a proper showing of the need for such
relief.
(b) The Arbitrator. A single arbitrator will conduct the arbitration in Tampa,
Florida, U.S.A., in accordance with the Commercial Arbitration Rules of the American
Arbitration Association (the “Rules”), and judgment upon the written award rendered by the
arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the
application of the Rules, however, discovery in the arbitration, including interrogatories,
requests for production, requests for admission, and depositions, will be fully available
and governed by the Federal Rules of Civil Procedure and Local Rules of the United States
District Court for the Middle District of Florida. The parties may agree upon a person to
act as sole arbitrator within thirty (30) days after submission of any claim or controversy
to arbitration pursuant to this Section. If the parties are unable to agree upon such a
person within such time period, an arbitrator shall be selected in accordance with the
Rules. The parties will pay their own respective attorneys’ fees, witness fees, and other
costs and expenses incurred in any investigations, arbitrations, trials, bankruptcies, and
appeals; provided, however, that the Company will pay the filing fees, hearing fees, and
processing fees associated with arbitration hereunder.
(c) Limitations Period. The parties agree that any claim or controversy that would be
arbitrable under this Section must be submitted to arbitration within one (1) year after the
claim or controversy arises and that a failure to institute arbitration proceedings within
such time period shall constitute an absolute bar to the institution of any proceedings, in
arbitration or in any court, and a waiver of all such claims. This Section will survive the
expiration or early termination of this Agreement.
(d) Governing Law. This Agreement shall be governed in its construction,
interpretation, and performance by the laws of the State of Florida, without reference to
law pertaining to conflict of laws. However, the Federal Arbitration Act, as amended, will
govern the interpretation and enforcement of this Section.
(e) Attorneys’ Fees. The prevailing party in any arbitration or dispute, or in any
litigation, arising out of or related to Executive’s employment by Company or this
Agreement, shall be entitled to recover all reasonable attorneys’ fees incurred on all
levels and in all proceedings, unless otherwise provided by law.
(f) Severability. Each part of this Section is severable. A holding that any part of
this Section is unenforceable will not affect the duty to arbitrate under this Section.
10. MISCELLANEOUS. No provision of this Agreement may be modified or waived unless such
waiver or modification is agreed to in writing signed by the parties hereto; provided, however,
that the terms of the performance bonus and fringe benefits set forth on Exhibit “A” may be amended
by the Company in its discretion without the Executive’s consent
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to the extent provided therein. No waiver by any party hereto of any breach by any other
party hereto shall be deemed a waiver of any similar or dissimilar term or condition at the same or
at any prior or subsequent time. This Agreement is the entire agreement between the parties hereto
with respect to the Executive’s employment by the Company and there are no agreements or
representations, oral or otherwise, expressed or implied, with respect to or related to the
employment of the Executive which are not set forth in this Agreement. Any prior agreement
relating to the Executive’s employment with the Company (including the Prior Agreement) is hereby
superseded and void, and is no longer in effect. This Agreement shall be binding upon and inure to
the benefit of the Company, its respective successors and assigns, and the Executive and his/her
heirs, executors, administrators and legal representatives. Except as expressly set forth herein,
no party shall assign any of his/her or its rights under this Agreement without the prior written
consent of the other party and any attempted assignment without such prior written consent shall be
null and void and without legal effect; provided, however, that Company may assign this Agreement
to any party that acquires all or substantially all of Company’s assets or business, without
Executive’s consent. The parties agree that if any provision of this Agreement shall under any
circumstances be deemed invalid or inoperative, the Agreement shall be construed with the invalid
or inoperative provision deleted and the rights and obligations of the parties shall be construed
and enforced accordingly. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will constitute but one and the
same instrument. This Agreement has been negotiated and no party shall be considered as being
responsible for such drafting for the purpose of applying any rule construing ambiguities against
the drafter or otherwise.
11. ADDITIONAL TAX PROVISIONS.
(a) To the extent this Agreement provides for reimbursements of expenses incurred by
Executive or in-kind benefits the provision of which are not exempt from the requirements of
Section 409A of the Code, the following terms apply with respect to such reimbursements or
benefits: (1) the reimbursement of expenses or provision of in-kind benefits will be made or
provided only during the term of employment hereunder, or other period of time specifically
provided herein; (2) the amount of expenses eligible for reimbursement, or in-kind benefits
provided, during a calendar year will not affect the expenses eligible for reimbursement, or
in-kind benefits to be provided, in any other calendar year; (3) all reimbursements will be
made upon Executive’s request in accordance with the Company’s normal policies but no later
than the last day of the calendar year immediately following the calendar year in which the
expense was incurred; and (4) the right to reimbursement or the in-kind benefit will not be
subject to liquidation or exchange for another benefit.
(b) The parties intend for this Agreement to conform in all respects to the
requirements under Section 409A of the Code or an exemption thereto. Accordingly, the
parties intend for this Agreement to be interpreted, construed, administered and applied in
a manner as shall meet and comply with the requirements of Section 409A of the Code or an
exemption thereto. Notwithstanding any other provision of this Agreement, none of the
Company, its subsidiaries or affiliates or any individual acting as a director, officer,
employee, agent or other representative of the Company or a subsidiary or affiliate shall
| Executive Evergreen | Xxxxx Enterprises Incorporated | _________ | ||
| Revised 12/08 | Page Number 12 | Initial |
Xxxxx X. Xxxxxx
be liable to Executive or any other person for any claim, loss, liability or expense
arising out of any interest, penalties or additional taxes due by Executive or any other
person as a result of this Agreement or the administration thereof not satisfying any of the
requirements of Section 409A of the Code. Executive represents and warrants that Executive
has reviewed or will review with his own tax advisors the federal, state, local and
employment tax consequences of entering into this Agreement, including, without limitation,
under Section 409A of the Code, and, with respect to such matters, Executive relies solely
on such advisors.
[Signature Page Follows]
| Executive Evergreen | Xxxxx Enterprises Incorporated | _________ | ||
| Revised 12/08 | Page Number 13 | Initial |
Xxxxx X. Xxxxxx
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
above written.
| XXXXX ENTERPRISES, INCORPORATED | EXECUTIVE | |||||||||
| By: | /s/ Xxxxx X. Xxxxxx | /s/ Xxxxx X. Xxxxxx | ||||||||
| Name: | Xxxxx X. Xxxxxx | Name: Xxxxx X. Xxxxxx | ||||||||
| Title: | SVP and General Counsel | |||||||||
| Address: |
||||||||||
| Executive Evergreen | Xxxxx Enterprises Incorporated | _________ | ||
| Revised 12/08 | Page Number 14 | Initial |
Xxxxx X. Xxxxxx
EXHIBIT “A” TO EMPLOYMENT AGREEMENT
BASE SALARY:
|
$4,230.77 per week payable biweekly. | |
PERFORMANCE BONUS:
|
Eligible to participate in performance based bonus program | |
FRINGE BENEFITS:
|
Eligible for standard executive benefits |
THE COMPANY RESERVES THE RIGHT, AT ITS DISCRETION, AT SUCH TIME OR TIMES AS IT ELECTS, TO CHANGE OR
ELIMINATE THE PERFORMANCE BONUS, INCENTIVES, OR OTHER BENEFITS.
IN WITNESS WHEREOF, the parties have executed this Exhibit “A” as of the 29th day
of December, 2008.
| XXXXX ENTERPRISES, INCORPORATED | EXECUTIVE | |||||||||
| By: | /s/ Xxxxx X. Xxxxxx | /s/ Xxxxx X. Xxxxxx | ||||||||
| Name: | Xxxxx X. Xxxxxx | Name: Xxxxx X. Xxxxxx | ||||||||
| Title: | SVP and General Counsel | |||||||||
| Executive Evergreen | Xxxxx Enterprises Incorporated | _________ | ||
| Revised 12/08 | Page Number 15 | Initial |
