EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is effective as of
July 1, 1996, by and between APOLLO INTERNATIONAL OF DELAWARE, INC., a Delaware
corporation ("Company"), and XXXXXXXXX XXXXXX ("Employee") currently holding the
position of Vice President of Marketing.
W I T N E S S E T H:
WHEREAS, the Company believes that the attraction and retention of key
employees such as the Employee is essential to the Company's growth and success;
and
WHEREAS, the Company desires to employ Employee as its Vice President of
Marketing and Employee desires to accept such employment, all on the terms and
conditions as hereinafter provided; and
WHEREAS, Employee is currently receiving compensation for services rendered
to the Company and/or its subsidiaries.
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto
agree as follows:
1. Term. The Company hereby employs Employee and Employee hereby accepts
employment by the Company for a period of four (4) years beginning on the date
of this Agreement, subject to the terms and conditions hereafter contained. This
Agreement will be renewed automatically thereafter for successive periods of two
(2) years, unless not less than one hundred twenty (120) days prior to the end
of the initial four (4) year period, or one hundred twenty (120) days prior to
the end of any two (2) year renewal period, as the case may be, one of the
parties sends written notice to the other party of its intent to terminate this
Agreement at the end of such period.
2. Duties. The Company shall continue to employ Employee in an executive
capacity as Vice President of Marketing of the Company. Employee shall perform
such duties ordinarily and customarily performed by a similar employee of a
corporation of like type and size as the Company, and shall perform such other
reasonable duties as a senior Company officer of the Board of Directors may
assign to her from time to time.
3. Base Salary and Commission.
A. As full compensation for services rendered under this Agreement, the
Company shall pay Employee, during the term of this Agreement, a base salary of
One Hundred Thousand and NO/100ths ($100,000.00) per year (the "Base Salary"),
payable in accordance with
the normal payroll practices of the Company. In addition to the Base Salary, the
Company may pay Employee bonuses from time to time as set forth below.
B. On each January 1, during the term of this Agreement, the base Salary
shall be increased to reflect the change in the cost of living, based upon the
change, from the proceeding January 1, in the Consumer Price Index for All Urban
Consumers, as published by the U.S. Bureau of Labor Statistics (reference base
1982-1984 = 100). On each January 1, and at any time that there is a change in
the financial condition or character of the business of the Company during the
term of this Agreement, the Board of Directors shall review the base salary
amount to determine whether or not to grant additional increases in the base
salary amount.
C. In addition to the Base Salary referenced above, Employee shall receive
a sales commission of one and one-half percent (1-1/2%) of the Net Sales
Proceeds (defined hereinbelow) on sales of the Company's products within the
United States (the "Commission"). For purposes of this Section C, the terms "Net
Sales Proceeds" is defined as the gross sales price of the Company's products,
less (a) any commissions paid to third parties by the Company with respect to
such products, (b) sales tax, if any, and (c) shipping and handling charges.
4. Stock Options. During the term of her employment, Employee will be
provided with stock options under the Company's stock option plan(s) as
determined by the Company's Board of Directors and/or Compensation Committee.
5. Performance Bonus. In addition to the annual Base Salary provided
hereunder, Employee may, at the discretion of the Board of Directors, be
entitled to additional incentive compensation ("Bonus").
6. Fringe Benefits. Employee shall be entitled to vacations, health care
benefits, fringe benefits and reimbursement for reasonable out-of-pocket
expense, including but not limited to those hereinafter detailed, in accordance
with the Company's practices covering Employee personnel. The Company shall use
reasonable efforts to seek waivers of waiting periods, if any, applicable to
particular benefits. Such benefits shall include:
A. coverage for Executive and her family, under any major medical and
dental insurance programs and plans, and under any short-term, long-term or
permanent disability programs and plans, which are or may become generally
available to management employees of the Company;
B. retirement benefits at such time and on such amounts as are paid to
Employee by the Company at such time as the Company institutes a retirement
plan;
C. reimbursement of all properly approved travel and business related
expenses normally paid by the Company for the benefit of its executives. All
expense reports must be approved by the Chief Financial Officer of the Company
prior to reimbursement;
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D. vacation selected by Employee in accordance with the Company's vacation
policy for executives, which vacation will be appropriately selected by Employee
taking into account the convenience of the Company. Employee shall give the
Board of Directors at least fourteen (14) calendar days' prior notice of
selected vacation times of one week or more;
E. such number of days as established by Company policy for its employees
generally;
F. a holiday on the following days with full pay: New Year's Day,
Presidents' Day, Easter, Memorial Day, Independence Day, Labor Day, Thanksgiving
Day and Christmas Day, and such other holidays as the Company may declare; and
G. paid leave and reimbursement of all travel, tuition and related expenses
in attending trade conferences and/or seminars and/or college or other high
level courses acceptable to the Board of Directors in its reasonable discretion.
7. Termination by the Company for Cause.
A. The Company may, at its option, terminate this Agreement by giving
written notice of termination to Employee without prejudice to any other remedy
to which the Company may be entitled, either at law or in equity, under this
Agreement, in the event that:
(i) Employee is convicted of (and such conviction is sustained on final
appeal) or, pleads guilty to, or pleads nolo contendere to a felony crime
involving moral turpitude;
(ii) Employee is found by a court of law to be guilty (which guilty verdict
is sustained on final appeal) of or pleads guilty to or no contest to fraud,
conversion, embezzlement, intentionally falsifying records or reports, or a
similar felony involving the Company's property; or
(iii) Employee continues to willfully breach a material provision of this
Agreement after having received written notice of such breach and a thirty (30)
days' opportunity thereafter to cure such breach.
B. In the event of a termination claimed by the Company to be for "cause"
pursuant to clauses (i), (ii) or (iii) of this Section 7, Employee shall have
the right to have the justification for said termination determined by
arbitration. In such event, Employee shall serve on the Company within thirty
(30) days of termination, a written request for arbitration. The Company
immediately shall request the appointment of an arbitrator by the American
Arbitration Association and thereafter the issues shall be determined under the
rules of the American Arbitration Association and the decision of the arbitrator
shall be final and binding on both parties. The parties shall use all reasonable
efforts to facilitate and expedite the arbitration, and shall act to cause the
arbitration to be completed as promptly as possible. During the pendency of the
arbitration Employee shall continue to receive all compensation and benefits to
which she is
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entitled hereunder. Expenses of the arbitration shall be borne by the Company
pending a final determination of this matter at which time such expenses shall
be borne by the parties.
C. In the event of termination for any of the reasons set forth in
subsection A. of this Section 7, except as otherwise provided in Section 3 of
this Agreement, Employee shall be entitled to no further compensation, Base
Salary, Commission, Bonus or other benefits under this Agreement, except as to
that portion of any unpaid Base Salary, Commission, Bonus or other benefits
accrued and earned by her hereunder up to and including the final,
non-appealable determination by arbitration as to the justification for such
termination for "cause", if arbitration is invoked. If arbitration is not
invoked Base Salary, Commission or Bonus and unpaid benefits shall be accrued
and earned up to and including the effective date of such termination.
D. Anything herein to the contrary notwithstanding, the employment of the
Employee shall not be terminable by the Company for "cause" if the grounds for
such terminations are: (i) the result of bad judgment or poor economic results
on the part of Employee, (ii) any act or any omission believed by Employee in
good faith to have been in or not opposed to the interests of the Company, (iii)
any act or omission in respect of which a determination could properly be made
that Employee met the applicable standard of conduct prescribed for
indemnification or reimbursement or payment of expenses under the charter or
by-laws of the Company, or the laws of the State of Delaware, or the directors'
and officers' liability insurance if the Company, in each case as in effect at
the time of such act or omission, or (iv) as a result of an act or omission
which occurred more than twelve (12) calendar months prior to the Employee's
having been given notice of the termination of her employment for such act or
omission unless the commission of such act could not at the time of such
commission or omission have been known to a member of the Board of Directors of
the Company (other than Employee, if she is then a member of the board of
directors), in which case more than twelve (12) calendar months prior to the
date that the commission of such act or such omission was or could reasonably
have been so known, or (v) as a result of the continuing course of action which
commenced and was or could reasonably have been known to a member of the board
of directors of the Company (other than Employee) more than twelve (12) calendar
months prior to notice having been given to Employee of the termination of her
employment.
8. Termination by the Company; Death; or Permanent Disability.
A. If the Company terminates Employee "without cause" which shall mean for
any reason other than as set forth in Section 7 hereof, or in the event of
Employee's death or "permanent disability" (as defined below), Employee shall:
(i) be entitled to receive an amount equal to the full compensation to which she
would otherwise be entitled under this Agreement (just as if Employee had not
been so terminated and was continuing to serve as an employee hereunder for the
full term of this agreement) for a six (6) month period from the effective date
of such termination, death, or permanent disability (the "Severance Payment").
Such Severance Payment shall be payable in a single lump sum distribution
(without any present value adjustment) to Employee or her estate, as the case
may be, no later than ninety (90) days from the effective date of such
termination, and (ii) be provided, for a six (6) month period, with all the
insurance
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and other benefits set forth in Section 6.A. hereof (provided, however, to the
extent that the benefits in Section 6.A. cannot in fact be paid due to the fact
that Employee is not in fact employed hereunder, the Company promptly shall pay
Employee the indubitable monetary, after tax equivalent thereof in U.S. Dollars,
without any present value adjustment).
B. Payment in the Event of Permanent Disability. For purposes of this
Agreement, Employee's "permanent disability" shall be deemed to have occurred
after one hundred twenty (120) days in the aggregate during any consecutive
twelve (12) month period, or after ninety (90) consecutive days, during which
one hundred twenty (120) or ninety (90) days, as the case may be, Employee, by
reason of her physical or mental disability or illness, shall have been unable
to discharge fully her duties under this Agreement. The date of permanent
disability shall be the one hundred twentieth (120th) or ninetieth (90th) day,
as the case may be. In the event Employee, after receipt of notice from the
Company, shall dispute that her permanent disability shall have occurred, she
shall promptly submit to a physical examination by the Chief of Medicine of any
major accredited hospital in the metropolitan area, Tampa, Florida, and, unless
such physician shall issue her written statement to the effect that in her
opinion, based on her diagnosis, Employee is capable of resuming her employment
and devoting her full time and energy to discharging her duties within ten (10)
days after the date of such statement, such permanent disability shall be deemed
to have occurred without further dispute by Employee or Company.
9. Termination by Employee. Employee may, at her option, after complying
with this Section 9, terminate this Agreement in the event of a material breach
of the terms of this Agreement by the Company. Employee shall be required to
give written notice to the Company setting forth with particularity the nature
of the material breach. The Company shall have thirty (30) days following its
receipt of Employee's written notice in which to cure its breach before
Employee's termination of this Agreement shall be effective. In the event
Employee's termination shall be effective under this Section 9, Employee shall:
(i) be entitled to receive the full compensation to which she would otherwise be
entitled under this Agreement (just as if Employee had not so terminated her
employment and was continuing to serve as an employee hereunder for the full
term of this Agreement (the "Continuation Period")) payable in a single sum
distribution (without any present value adjustment) on the date of such
termination, and (ii) be provided, for the Continuation Period, with all the
insurance and other benefits set forth in Section 6.A. hereof (provided,
however, to the extent that the benefits in Section 6.A. cannot in fact be paid
due to the fact that Employee is not in fact employed hereunder, the Company
promptly shall pay Employee the indubitable, after-tax monetary equivalent
thereof in U.S. Dollars, without any present value adjustment). If Employee
terminates this Agreement for any reason other than pursuant to this Section 9,
except as otherwise provided in Section 8 of this Agreement as it relates to the
death of Employee, Employee shall be entitled to no further compensation or
other benefits under this Agreement, except as to that portion of any unpaid
salary and other benefits accrued and earned by her hereunder up to and
including the effective date of such termination.
10. Confidential Information. Employee recognizes and acknowledges that the
Company has, through the expenditure of substantial time, effort and money,
developed and acquired certain confidential information and trade secrets which
have become of great value to
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the Company in its operations. Employee further acknowledges and understands
that in the course of performing her duties for the Company, Employee has
received and will receive special training and experience, and has had and will
have access to the trade secrets and confidential information of the Company.
Employee agrees that during the course of her employment and at any time after
the termination or expiration thereof, she will not make any independent use of,
publish or disclose, or authorize anyone to publish or disclose, to any other
person or organization, any of the Company's trade secrets and confidential
information, except as required in the course of her employment with the Company
or by law. Upon request of the Company and, in any event upon the cessation of
Employee's employment with the Company, whether with or without cause, Employee
will promptly return all tangible expressions of trade secrets and confidential
information in her possession and control and all copies thereof. As used
herein, the term "trade secrets and confidential information" shall mean client
lists, applicant lists, and other related client and applicant data,
computerized compilation of such data, training materials and information,
policy and procedure manuals, video and audio recordings of training and
operation methods, sales, services, support and marketing practices and
operations, advertising themes, formats of advertising and other business
methods, and techniques, processes and financial information of the Company, all
of which are not generally known to the trade or industry and which will be of
competitive use by them. "Trade secrets and confidential information" shall not
include intangible information which is generally known and used by persons with
training and experience comparable to Employee as of the date of this Agreement
and all intangible information which is common knowledge in the industry or
otherwise legally in the public domain.
Employee further agrees that the restrictions set forth in this Section 10
are in addition to, and not in lieu of, any other restrictions or obligations
placed upon her, and/or any rights or remedies available to the Company, by any
statute or at common law.
11. Covenant not to Compete. Employee covenants and agrees that, in order
to protect the Company's legitimate interest in its trade secrets and
confidential information, special training, and business during the term of her
employment, for a period of two (2) years following the expiration or
termination of this Agreement or any renewal of the Agreement, however the same
shall occur, whether voluntary or involuntary, Employee will not, without the
prior written consent of the Company, directly or indirectly:
A. engage, whether by virtue of stock ownership, management
responsibilities or otherwise, in companies, businesses, organizations and/or
ventures which manufacture, market or distribute products which are competitive
with any of the "Company's Products" (as hereinafter defined) anywhere in the
United States; or
B. become interested, directly or indirectly, whether as principal, owner,
stockholder, partner, agent, officer, director, employee, salesman, joint
venturer, consultant, advisor, independent contractor or otherwise, in any
person, firm, partnership, association, venture, corporation or entity engaging
directly or indirectly in any of the activities described in Subsection 11.A.
above; or
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C. knowingly solicit the employment of any of the Company Personnel (as
hereinafter defined).
For purposes of this Agreement:
(i) the term "Company Personnel" shall mean any person employed by the
Company at any time through the end of the term of this Agreement, but excluding
any person who has left such employment for a continuous period exceeding one
(1) year;
(ii) the term "Company" shall include any successor in interest whether by
sale, merger, liquidation or the like, and any of the Company's subsidiaries and
affiliates;
(iii) the term "Company's Products" shall mean any present or future
(future being limited to the term of this Agreement and any and all extensions
thereof) product (i) being sold by the Company or (ii) any product designed,
engineered, manufactured, assembled, or enhanced (whether or not sold) by the
Company.
D. None of the foregoing shall prevent Employee from holding up to two
percent (2%) in the aggregate of any class of securities of any entity engaged
in the prohibited activities described above, provided that, such securities are
listed on a national securities exchange or registered under Section 12(g) of
the Securities and Exchange Act of 1934.
E. If any of the provisions contained in this Section 11 are held to be
unenforceable because of the duration of such provision, the geographical area
covered thereby, and/or the range of the Company's Products protected, the
parties agree that the court of competent jurisdiction making such determination
shall have the power to reduce or otherwise modify the duration, the
geographical area of such provision, and/or the range of the Company's Products
protected, and, in its reduced or modified form, such provisions shall then be
enforceable.
12. Remedies in Event of Breach.
A. Injunctive Relief. The parties acknowledge that each would be
irreparably harmed by any breach of the covenants contained in Sections 10 and
11 of this Agreement, and that either party's remedy at law for any breach by
the other party of its obligations under Sections 10 or 11 of this Agreement
would be inadequate, and would be impossible to ascertain and therefore, in the
event of the breach or threatened breach of any obligations under Sections 10
and 11 of this Agreement, either party, in addition to any and all other
remedies at law or in equity, shall have the right to enjoin the other party
from any threatened or actual activities in violation thereof; and the parties
hereby consent and agree that temporary and permanent injunctive relief may be
granted in any proceedings which might be brought to enforce any such covenants
without the necessity of proof of actual damages and without the necessity of
posting bond. In the event either party does apply for such injunction, the
other party shall not raise as a defense thereto that such applying party has an
adequate remedy at law.
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B. Damages; Accounting for Profits. In addition to any injunctive relief
that may be granted to the Company or Employee for breach of this Agreement, the
Company and Employee shall be entitled to recover all damages, including
reasonable attorneys' fees and costs (including paralegals' fees), sustained or
incurred by the Company or Employee by reason of a violation or threatened
violation of the terms of this Agreement, and to receive such other remedy or
remedies as the court determines is appropriate. Employee covenants and agrees
that, if she violates any of her covenants or agreements under Sections 10 or 11
hereof, the Company shall be entitled to an accounting and repayment of all
profits, compensations, commissions, remunerations or benefits which Employee
directly or indirectly has realized or may realize as a result of, growing out
of, or in connection with, any such violation; such remedy shall be in addition
to and not in limitation of any injunctive relief or any other rights or
remedies to which the Company is nor may be entitled at law or in equity or
under this Agreement.
13. Reasonableness. Employee has carefully read and considered the
provisions of Sections 10 and 11 hereof and, having done so, agrees that the
restrictions set forth in such sections, including, but not limited to, the time
period of restriction, the geographical areas of restriction, and the definition
of Company Products set forth therein, are fair and reasonable and are
reasonably required for the protection of the interests of the Company, and
further that the geographical area of restriction set forth therein accurately
reflects the area in which she will be actively engaged in the performance of
services.
14. No Inconsistent Obligations. Employee represents and warrants that no
action required of her under this Agreement or any other agreements or
understandings, written or oral, entered into with the Company will conflict
with, breach or otherwise impair any previously existing agreements or
understandings, whether written or oral, into which Employee has entered with
other persons or entities, including agreements with respect to proprietary
information or non-competition.
15. Indemnification. The parties shall enter into a separate
indemnification agreement, in form and substance mutually agreeable to the
parties, within ninety (90) days from the execution of this Agreement.
16. Notices. Any notice to be given hereunder shall be deemed to be given
when delivered by hand or by overnight courier to the party for whom the notice
is intended, or three (3) days after notice is placed in the U.S. mail properly
addressed to the party for whom notice is intended, at the following address:
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If to the Company: APOLLO INTERNATIONAL OF DELAWARE, INC.
0000 Xxxxx X.X. Xxxxxxx 00 - Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
If to Employee: Xxxxxxxxx Xxxxxx
0000 Xxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
17. Binding Effect and Governing Law. This Agreement supersedes all prior
understandings and agreements between the parties with respect to the subject
matter hereof. This Agreement shall be binding upon the legal representatives,
heirs, distributees, successors and assigns of the parties. The Agreement
contains the entire agreement of the parties, and may not be changed orally but
only in writing signed by the party against whom enforcement of any such change
is sought. It is agreed that a waiver by either party of a breach of any
provision of this Agreement shall not be operated or be construed as a waiver of
any subsequent breach by that same party. This Agreement shall be governed by
the laws of the State of Florida.
18. Severability. In the event that any terms or provisions of this
Agreement shall be held to be invalid or unenforceable by a court of competent
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remaining terms and provisions hereof.
19. Assignability. The rights or obligations contained in this Agreement
shall not be assigned, transferred, or divided in any manner by Employee or
Company, without the prior written consent of the other; provided, however, that
nothing in this Section 19 shall preclude Employee from designating a
beneficiary to receive any benefits hereunder upon her death, or the executors,
administrator or other legal representatives of Employee or her estate from
assigning any rights hereunder to the person(s) entitled thereto.
Notwithstanding the foregoing, this Agreement shall be binding on any entity
which by purchase of assets, merger, or otherwise, becomes a successor to the
business of the Company.
20. Headings. The headings of paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation and
performance of any of the provisions of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
COMPANY:
APOLLO INTERNATIONAL OF DELAWARE,
INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx, President
------------------------------
Xxxxx X. Xxxxxx, President
EMPLOYEE:
By: /s/ Xxxxxxxxx Xxxxxx
----------------------
Xxxxxxxxx Xxxxxx
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