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EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into and shall
be effective as of January 1, 2000 between Corporate Buying Service Inc., a
Florida corporation (the "Company"), and Xxxxxxx Xxxxxx, a resident of the State
of Florida (the "Executive").
RECITALS
The Company operates an internet-based, business-to-business electronic
marketplace which enables information technology buyers to efficiently source,
evaluate, purchase and track a wide variety of computer hardware, software and
related technology products directly from the inventories of leading technology
wholesale distributors. The Executive was the founder of and has served as
President and Chief Executive Officer of the Company since its organization. The
Company is evaluating potential financing transactions and wishes to confirm in
connection therewith certain understandings with respect to the Executive's
employment with the Company.
TERMS OF AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. EMPLOYMENT. The Company hereby agrees to employ the Executive to
serve in the capacities described herein, and the Executive agrees to accept
such employment and perform such services upon the terms and subject to the
conditions set forth in this Agreement.
2. TERM. The Executive's employment by the Company under this Agreement
shall commence on January 1, 2000 (the "Commencement Date") and expire on the
close of business on January 1, 2003 (the "Expiration Date") unless terminated
by the Company prior thereto in accordance with the terms of this Agreement. For
purposes of this Agreement, "Term" shall mean the period beginning on the
Commencement Date and ending upon the sooner of the Expiration Date or the
termination of the Executive's employment hereunder for any reason.
3. DUTIES AND RESPONSIBILITIES. During the Term, the Executive shall
serve as the President and Chief Executive Officer of the Company. The Executive
shall perform such duties and have such authority as may be assigned and
delegated to him from time to time by the Board of Directors of the Company. The
Executive shall at all times perform his duties and responsibilities honestly,
diligently, in good faith and to the best of his ability. The Executive shall
observe and comply with all of the rules, regulations, policies and procedures
established by the Company from time to time and all applicable laws, rules and
regulations imposed by governmental and regulatory authorities from time to
time. The Executive's employment by the Company shall be full-time and exclusive
and the Executive agrees that he will devote his full business time, attention
and energies
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to the performance of his obligations hereunder. Notwithstanding the foregoing,
the Executive shall be permitted to engage in charitable and civic activities
and manage his personal passive investments, provided such personal passive
investments are not in a company which engages in a business competitive with
the business of the Company and provided that such activities do not
individually or collectively interfere with the performance of his duties and
responsibilities under this Agreement. The Executive shall be based at the
Company's headquarters in Boca Raton, Florida, subject to such travel as may be
necessary to fulfill his obligations under this Agreement.
4. COMPENSATION. As compensation for his services hereunder and in
consideration of the covenants set forth in Sections 9, 10 and 11 below, the
Company shall pay to the Executive the following compensation, subject to any
withholding and other taxes as may be imposed by applicable federal, state,
provincial or local government authorities and other normal and usual employee
deductions:
(a) BASE SALARY. The Company shall pay to the Executive an
annual base salary (the "Base Salary") of Two Hundred Fifty Thousand Dollars
($250,000) per year during the Term. The Base Salary shall be increased by ten
percent (10%) on each anniversary of the date hereof and may be further
increased from time to time during the Term in the sole discretion of the
Company's Board of Directors. The Base Salary shall be payable in accordance
with the Company's customary payroll practices and procedures and shall be
prorated for any partial year arising during the Term.
(b) BONUS. In addition to the Base Salary, the Executive shall
be eligible to be paid a bonus (the "Bonus") on account of the services rendered
by him during each calendar year during the Term beginning with calendar year
2000. The Bonus, if any, payable on account of any calendar year shall be
payable within ninety (90) days following the end of such calendar year and
shall be prorated for any partial calendar year during the Term. The Bonus
payable on account of any calendar year during the Term shall be calculated as
follows:
(i) If the Modified Operating Income (as defined
below) of the Company for such year is equal to the target Modified
Operating Income for such year as determined in the sole discretion of
the Company's Board of Directors (or the Compensation Committee
thereof) (the "Target"), the Executive shall be entitled to a Bonus in
an amount equal to 50% of the Base Salary of the Executive as of
December 31 of such year (the "Target Bonus"). For purposes of this
Agreement, "Modified Operating Income" for any period shall mean the
sum of (a) the operating income of the Company for such period
determined in accordance with generally accepted accounting principles
in the United States of America as in effect from time to time, and (b)
any charges and expenses taken by the Company during such period on
account of the issuance of any stock options or warrants, in each case,
as determined by the Company in its sole discretion
(ii) If the Modified Operating Income of the Company
for such year is more than the Target and less than 150% of the Target,
the Executive shall be entitled to a Bonus as calculated below:
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B = Target Bonus + [Target Bonus x MOI - T]
-------
T
where:
B = the Bonus earned in such year.
MOI = the Modified Operating Income of the Company for
such year.
T = the Target for such year.
(iii) If the Modified Operating Income of the Company
for such year is equal to or greater than 150% of the Target, the
Executive shall be entitled to a Bonus in an amount equal to 150% of
the Target Bonus.
(iv) If the Modified Operating Income of the Company
for such year is more than 75% of the Target but less than the Target,
the Executive shall be entitled to a Bonus as calculated below:
B = Target Bonus - [Target Bonus x T - MOI]
-------
T
where:
B = the Bonus earned in such year.
MOI = the Modified Operating Income of the Company for
such year.
T = the Target for such year.
(v) If the Modified Operating Income of the Company
for such year is equal to or less than 75% of the Target, the Executive
shall not be entitled to a Bonus.
(c) STOCK OPTIONS. The Executive shall be eligible to
participate in any stock option plan which may be adopted by the Company from
time to time in such amount and on such terms as may be approved by the
Company's Board of Directors.
5. FRINGE BENEFITS. The Executive shall be paid an automobile allowance
in the amount of One Thousand Dollars ($1,000) per month. The Executive shall
also be entitled to participate in all employee benefit plans and programs
(including, without limitation, profit sharing, medical, disability and life
insurance plans and programs) that the Company establishes and makes generally
available from time to time to its employees, subject, however, to the
applicable eligibility requirements and other provisions of such plans and
programs (including, without limitation, requirements as to position, tenure,
salary, age and health). The Executive shall also be entitled to receive such
fringe benefits and prerequisites as may be generally provided by the Company
from
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time to time to its employees, in accordance with the policies of the Company in
effect from time to time.
6. VACATION. The Executive shall be entitled to four (4) weeks paid
vacation annually. The Executive shall be entitled to as many holidays, sick
days and personal days as are generally provided by the Company from time to
time to its employees in accordance with the Company's policies as in effect
from time to time.
7. REIMBURSEMENT OF EXPENSES. The Company shall pay or reimburse the
Executive for all reasonable and necessary travel, entertainment and other
expenses incurred by him in connection with the performance of his duties
hereunder in accordance with the policies and procedures of the Company as in
effect from time to time.
8. TERMINATION. Notwithstanding anything to the contrary contained in
this Agreement, the Company shall have the right, in addition to any other
rights and remedies which it may have, to terminate this Agreement and the
Executive's employment hereunder as follows:
(a) FOR CAUSE. In the event that the Executive (i) repeated
breaches of any of the material terms or conditions of this Agreement and such
breaches are not cured (if curable) within a reasonable time after written
notice thereof is delivered to the Executive by the Company; (ii) commits any
dishonest or fraudulent act with respect to the Company; or (iii) is convicted
of any serious misdemeanor involving illegal use, possession or sale of drugs,
larceny, crimes of violence or sex offenses or any felony, then the Company
shall have the right to immediately terminate this Agreement and the Executive's
employment with the Company hereunder by delivery of written notice to the
Executive of such termination.
(b) DEATH. In the event of the Executive's death, this
Agreement shall automatically terminate as of the date of such death without
notice to either party.
(c) DISABILITY. In the event that the Executive shall be
unable to perform his duties hereunder by virtue of illness or physical or
mental disability (from any cause or causes whatsoever) in substantially the
manner and to the extent required of him hereunder prior to the commencement of
such disability and the Executive shall fail to perform such duties for periods
aggregating 180 days, whether or not continuous, in any continuous 270 day
period, then the Company shall have the right to terminate this Agreement and
the Executive's employment with the Company as of the end of any calendar month
during the continuance of such disability upon at least 30 days' prior written
notice to the Executive.
(d) WITHOUT CAUSE. The Company shall have the right to
terminate this Agreement and the Executive's employment with the Company at any
time without cause on thirty (30) days prior written notice to the Executive.
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(e) GOOD REASON. The Executive shall have the right to
terminate his employment under this Agreement for "good reason" if:
(i) the Executive shall be assigned any duties
inconsistent in any respect with the Executive's position set forth in
Section 3 above or any action by the Company which results in a
material diminution in such position, or in the authority, duties or
responsibilities of the Executive, excluding for this purpose, any
isolated, insubstantial and inadvertent action by the Company which is
not taken in bad faith and which is remedied by the Company promptly
after receipt of notice thereof given by the Executive;
(ii) the Company shall fail to comply with any of the
provisions of Section 4 of this Agreement other than an isolated,
insubstantial and inadvertent action by the Company which is not taken
in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive;
(iii) the Company shall require the Executive to be
based at any office or location other than the location set forth in
Section 3 of this Agreement, except for travel reasonably required in
the performance of his responsibilities; or
(iv) the Company shall fail to comply with and
satisfy the terms of Section 15 of this Agreement.
(f) MUTUAL AGREEMENT. The parties may terminate this Agreement
and the Executive's employment with the Company upon their mutual written
consent.
(g) PAYMENTS UPON TERMINATION.
(i) In the event that the Company shall terminate
this Agreement and the Executive's employment with the Company under
Section 8(a) above or the Executive shall terminate this Agreement and
his employment with the Company other than for good reason prior to the
Expiration Date, then (a) the Company shall pay to the Executive to the
extent not theretofore paid (1) the Base Salary earned through the date
of termination, payable when and as the same would have been payable
but for such termination, and (2) any Bonus payable under this
Agreement on account of any prior calendar year, payable when and as
the same would have been payable but for such termination, and (b) the
Company shall reimburse the Executive for any expenses for which the
Executive is entitled to reimbursement under Section 7 of this
Agreement and the Company shall have no further obligation to the
Executive.
(ii) In the event that the Company shall terminate
this Agreement and the Executive's employment with the Company under
Section 8(b) or (c) above, then (a) the Company shall pay to the
Executive (or his heirs or personal representatives) to the extent not
theretofore paid (1) the Base Salary earned through the date of
termination, payable when
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and as the same would have been payable but for such termination, (2)
any Bonus payable under this Agreement on account of any prior calendar
year, payable when and as the same would have been payable but for such
termination, (3) in the event that a Bonus would have been payable to
the Executive under this Agreement but for such termination of
employment on account of the calendar year in which this Agreement is
terminated, a pro rata portion of such Bonus based on a fraction, the
numerator of which is the number of days in the calendar year in which
the Agreement was terminated occurring prior to the effective date of
such termination and the denomination of which is 365, payable when and
as the same would have been payable but for such termination, (b) in
the case of termination under Section 8(c) above, the Company shall
continue to provide the Executive with those medical, life and
disability insurance benefits, if any, which are provided to the
Executive on the last day of his employment by the Company for a period
of one year following the last day of employment with the Company, and
(c) the Company shall reimburse the Executive for any expenses for
which the Executive is entitled to reimbursement under Section 7 of
this Agreement.
(iii) In the event that the Company shall terminate
this Agreement and the Executive's employment with the Company under
Section 8(d) above (for a reason other than those covered by Sections
8(a), (b) or (c) above) or the Executive shall terminate this Agreement
and his employment with the Company for good reason prior to the
Expiration Date, then (a) the Company shall pay to the Executive to the
extent not theretofore paid (1) an amount equal to the Base Salary
through the date of termination, payable when and as the same would
have been payable but for such termination; (2) the Bonus, if any,
payable under this Agreement on account of any prior calendar year,
payable when and as the same would have been payable but for such
termination; (3) an amount equal to two years Base Salary, plus the
amount of any Bonus paid to the Executive under this Agreement on
account of each of the two calendar years preceding the year in which
such termination occurs, payable in a lump sum on the date of
termination; and (4) in the event that a Bonus would have been payable
to the Executive under this Agreement but for such termination of
employment on account of the calendar year in which this Agreement is
terminated, a pro rata portion of such Bonus based on a fraction, the
numerator of which is the number of days in the calendar year in which
the Agreement was terminated occurring prior to the effective date of
such termination and the denominator of which is 365, payable when and
as the same would have been payable but for such termination, (b) the
Company shall continue to provide the Executive with those medical,
life and disability insurance benefits, if any, which are provided to
the Executive on the last day of his employment with the Company for a
period of two years following his last day of employment with the
Company, and (c) the Company shall reimburse the Executive for any
expenses for which the Executive is entitled to reimbursement under
Section 7 of this Agreement, and the Company shall have no further
obligation to the Executive. The payments made under Sections (a)(3)
and (a)(4) of this subsection shall be referred to herein as the
"Severance Payment." If the Severance Payment, either alone
or together with other "parachute payments" (as defined in Section
280G(b)(2)(A) of the Code), would constitute an "excess parachute
payment" (as defined in Section 280G(b)(1) of the Code), such Severance
Payment shall be reduced to the largest amount as will result
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in no portion of the Severance Payment being subject to the excise tax
imposed by Section 4999 of the Code (the "Reduced Severance Payment"),
provided however, no reduction to the Severance Payment shall occur if
the Severance Payment, prior to any such reduction, less any excise tax
which would be imposed on such payment pursuant to Section 4999 of the
Code, would be greater than the Reduced Severance Payment. The
determination of any reduction in the Severance Payment pursuant to the
foregoing provision shall be made by independent counsel to the Company
in consultation with the independent certified public accountants
and/or auditors of the Company.
(iv) In the event that the parties shall terminate
this Agreement and the Executive's employment with the Company pursuant
to Section 8(f), then the Executive shall only be entitled to receive
those payments and benefits which are expressly set forth in the
severance or other agreement entered into by the parties in connection
with such termination.
(h) Notwithstanding anything to the contrary contained herein,
in no event shall the Executive be obligated to seek other employment or take
any other action by way of mitigation of the amounts payable to the Executive
under this Agreement.
9. CONFIDENTIAL INFORMATION. The Executive recognizes and acknowledges
that he will have access to certain confidential and proprietary information
about the Company, its affiliates and parties with whom the Company does
business (collectively, the "Confidential Information"), (including, without
limitation, trade secrets and other information regarding research,
developments, inventions, product designs and specifications, know-how, prices,
suppliers, customers, costs, strategies, financial and business prospects) and
that such information constitutes valuable, special and unique property of the
Company. The Executive acknowledges that the Confidential Information is and
shall remain the exclusive property of the Company. The Executive agrees that he
will not at any time (whether during the Term or at any time thereafter)
disclose the Confidential Information to anyone outside the Company, or utilize
such Confidential Information for his own benefit or the benefit of any third
parties without the prior written consent of the Company. The Executive agrees
that the foregoing restrictions shall apply whether or not such information is
marked "Confidential". The Company acknowledges that the term "Confidential
Information" shall not include information (i) was known by the Executive prior
to disclosure by or on behalf of the Company, its affiliates or parties with
whom the Company does business, (ii) becomes available to the Executive from a
source other than the Company, its affiliates or parties with whom the Company
does business that is not bound by a duty of confidentiality to the Company, its
affiliates or such other parties, or (iii) becomes generally available or known
in the industry other than as a result of its disclosure by the Executive. In
the event that the Executive becomes legally obligated to disclose any
Confidential Information other than to the Company, he will provide the Company
with prompt notice thereof so that the Company may seek a protective order or
other appropriate remedy and the Executive will cooperate with and assist the
Company in securing such protective order or other remedy. In the event that
such protective order is not obtained, or that the Company waives compliance
with the provisions of this Section to permit a particular disclosure, the
Executive will furnish only that portion of the Confidential Information which
he is legally required to disclose. The Executive further agrees that all
memoranda, disks, files, notes, records or other documents which contain
Confidential Information, whether in electronic form or hard copy, and whether
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created by the Executive or others, which come into his possession, shall be and
remain the exclusive property of the Company to be used by the Executive only in
the performance of his obligations hereunder, and shall be delivered by him to
the Company together with any copies thereof upon the termination of his
employment hereunder or at any other time upon the request of the Company. The
Executive also agrees to execute such confidentiality agreements that the Board
of Directors of the Company may adopt, and modify from time to time, as a
standard form to be executed by employees of the Company.
10. NONCOMPETITION. The Executive acknowledges that (a) the Company
engages in a competitive business, (b) the Executive's services and
responsibilities are unique in character and are of particular significance to
the Company, and (c) the Executive's position with the Company will place him in
a position of confidence and trust with the customers, suppliers and employees
of the Company. The Executive consequently agrees that it is reasonable and
necessary for the protection of the Company and its goodwill and business that
the Executive makes the commitments set forth herein. The Executive therefore
agrees that during the Term and for a period of two (2) years thereafter (the
"Noncompete Period"), he will not:
(a) as an individual proprietor, partner, shareholder,
officer, director, employee, consultant, independent contractor, agent, joint
venturer, investor or lender, directly or indirectly, engage anywhere in the
United States in the business of selling computers and computer-related hardware
or software products to commercial businesses using the internet as a
significant channel of distribution or in any other business engaged in by the
Company or any of its present or future parents, subsidiaries or other
affiliates while the Executive was employed by the Company; PROVIDED, HOWEVER,
that the beneficial ownership by the Executive of less than two percent (2%) of
the shares of common stock of any other corporation having a class of equity
securities actively traded on a national securities exchange or over-the-counter
market shall not be deemed, in and of itself, to violate the prohibitions of
this Section, or
(b) attempt in any manner to solicit or sell to any Customer
(as defined below) any products of the type developed, produced, marketed or
sold or being developed, produced, marketed or sold by the Company while the
Executive was employed by the Company or any products competitive with such
products or to persuade any Customer to cease to do business or reduce the
amount of business which such Customer has customarily done or is reasonably
expected to do with the Company, whether or not the relationship between the
Company and such Customer was originally established in whole or in part through
his efforts. As used in this paragraph, the term "Customer" shall mean and
include (i) anyone who was a customer of the Company or any of its present or
future parents, subsidiaries or other affiliates on the date of termination of
the Executive's employment or at any time during the one year immediately
preceding the date of termination of the Executive's employment, (ii) any
prospective customer to whom any representative of the Company or any of its
present or future parents, subsidiaries or other affiliates made a business
presentation or sales pitch at any time during the one year period immediately
preceding the date of termination of the Executive's employment and (iii) any
prospective customer to whom any representative of the Company or any of its
present or future parents, subsidiaries or other affiliates made a business
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presentation or sales pitch at any time within six months after the date of
termination of the Executive's employment if the initial contact or discussion
with such prospective customer relating to the sale of products occurred prior
to the date of termination of the Executive's employment. For purposes of this
clause, it is agreed that a general mailing or incidental contact shall not be
deemed a business presentation or sales pitch. In addition, if the Customer is
part of a group of entities which conduct business through more than one
entities, divisions, teams or operating units, whether or not separately
incorporated, the term "Customer" shall include each entity, division, team and
operating unit of the Customer.
11. NON-SOLICITATION OF EMPLOYEES. The Executive agrees that he will
not during the Term and for a period of two (2) years thereafter, directly or
indirectly, employ or permit any company or business directly or indirectly
controlled by him to employ, any person who is, or at any time during the
preceding twelve month period, was an employee of the Company, or induce or
persuade or seek to induce or persuade any such person to leave his employment
with the Company.
12. ENFORCEABILITY OF RESTRICTIVE COVENANTS. The Executive hereby
acknowledges that the restrictions on his activity contained in Sections 9, 10
and 11 are necessary for the reasonable protection of the Company and are a
material inducement to the Company entering into this Agreement. The Executive
further acknowledges that a breach or threatened breach of any such provisions
would cause irreparable harm to the Company for which there is no adequate
remedy at law. The Executive agrees that in the event of any breach or
threatened breach of any provision contained in Sections 9, 10 or 11 of this
Agreement, the Company shall have the right, in addition to any other rights or
remedies it may have, to seek injunctive relief without having to post bond or
other security and without having to prove special damages or the inadequacy of
the available remedies at law. The parties acknowledge that (a) the time, scope,
geographic area and other provisions contained in Sections 9, 10 and 11 are
reasonable and necessary to protect the goodwill and business of the Company,
(b) as an internet-based business, the Customers of the Company may be serviced
from any location and accordingly it is reasonable that the covenants set forth
herein are not limited by narrow geographic area, and (c) the restriction of the
Executive's ability to solicit Customers will not prevent him from being
employed or earning a livelihood. If any covenant contained in Sections 9, 10 or
11 are held to be unenforceable by reason of the time, scope or geographic area
covered thereby, such covenant shall be interpreted to extend to the maximum
time, scope or geographic area for which it may be enforced as determined by a
court making such determination, and such covenant shall only apply in its
reduced form to the operation of such covenant in the particular jurisdiction in
which such adjudication is made. In the event that the Company shall bring any
action, suit or proceeding against the Executive for the enforcement of this
Agreement, the calculation of the Noncompete Period shall not include the period
of time commencing with the filing of the action, suit or proceeding to enforce
this Agreement through the date of the final judgment or final resolution
(including all appeals, if any) of such action, suit or proceeding. The
existence of any claim or cause of action by the Executive against the Company
or any of its affiliates predicated on this Agreement or otherwise shall not
constitute a defense to the enforcement by the Company of any provision of
Sections 9, 10 or 11.
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13. INTELLECTUAL PROPERTY. The Executive agrees that he shall make full
and prompt disclosure to the Company of all inventions, improvements,
discoveries, methods, developments, software and works of authorship, whether or
not patentable or copyrightable, which are created, made, conceived or reduced
to practice by the Executive or under his direction or jointly with others
during the Term or within one (1) year thereafter (whether or not during normal
working hours, on the premises of the Company or using Company's equipment or
Confidential Information), which relate to the present or planned business or
research and development of the Company (all of which are collectively referred
to as "Developments"). All right, title and interest in the Developments,
whether or not used by the Company, shall, from the inception of development, be
exclusively and perpetually the property of the Company, free of any claim
whatsoever by the Executive or any third party deriving any rights from the
Executive. Any such Developments shall be deemed "works made for hire" within
the meaning of the U.S. Copyright Act and any other applicable U.S. or foreign
laws relating to intellectual property, and the Executive understands and
acknowledges that the Company shall own all right, title and interest in and to
the Developments, including without limitation copyright, patent and trademark
rights, throughout the world. To the extent that any Developments shall not be
deemed "works made for hire," the Executive hereby assigns to the Company any of
its right, title and interest in and to all worldwide intellectual proprietary
rights, including but not limited to all worldwide copyrights, trade secrets,
patent rights and trademark rights, in and to all of the Developments, and
agrees to cooperate fully with the Company, both during and after the Term, with
respect to the procurement, maintenance and enforcement of patents, copyrights
and other intellectual property rights, throughout the world, with respect to
the Developments. The Executive shall sign all papers, including, without
limitation, patent applications, copyright applications, declarations, oaths and
formal assignment documents, which the Company may deem necessary or appropriate
to protect its rights and interests in any Development. The Executive hereby
appoints any officer of the Company as the Executive's attorney-in-fact to
execute any such documents in the name and on behalf of the Executive in the
event that the Executive fails to execute and deliver such documents within
thirty (30) days after the Company's request.
14. CONFLICT. The Executive hereby represents and warrants to the
Company that the execution and delivery of this Agreement by him and the
performance by him of his duties hereunder, shall not constitute a default,
breach or violation of any understanding, contract or commitment, written or
oral, express or implied, to which the Executive is a party or to which the
Executive is or may be bound, including, without limitation, any understanding,
contract or commitment with any present or former employer. The Executive hereby
agrees to indemnify and hold the Company harmless from and against any and all
claims, losses, damages, liabilities, costs and expenses (including, without
limitation, attorneys' fees and expenses) incurred by the Company in connection
with any default, breach or violation by the Executive of any such
understanding, contract or commitment.
15. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, successors and
assigns, except that the Executive may not assign any of his rights or delegate
any of his duties hereunder without the prior written consent of the Company
(which may be granted or withheld in the Company's sole and absolute
discretion).
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The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform if no such succession had taken place. As used herein,
the "Company" shall mean the Company as defined herein and any successor to its
business and/or assets as aforesaid which assumes this Agreement by operation of
law or otherwise.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding of the parties and supersedes all prior agreements,
understandings, arrangements, promises and commitments, whether written or oral,
express or implied, relating to the subject matter hereof, and all such prior
agreements, understandings, arrangements, promises and commitments are hereby
canceled and terminated.
17. AMENDMENT. This Agreement may not be amended, supplemented or
modified in whole or in part except by an instrument in writing signed by the
party or parties against whom enforcement of such amendment, supplement or
modification is sought.
18. SURVIVAL. The provisions of Sections 7, 9, 10, 11, 12, 13,
14, 21, 22 and 27 hereof shall survive the termination or expiration of this
Agreement.
19. NOTICES. Any notice, request or other document required or
permitted to be given under this Agreement shall be in writing and shall be
deemed given (a) upon delivery, if delivered by hand, (b) three days after the
date of deposit in the mail, postage prepaid, if mailed by U.S. certified or
registered mail, or (c) on the next business day, if sent by prepaid overnight
courier service, in each case, addressed as follows:
If to the Executive, to the address set forth below his name
on the signature page hereto.
If to the Company, to:
Corporate Buying Service Inc.
0000 X. Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: President
with a copy to:
Akerman Senterfitt & Xxxxxx, P.A.
000 X. Xxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. March, Esq.
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Any party may change the address to which notice shall be sent by giving notice
of such change of address to the other parties in the manner provided above.
20. WAIVERS. The failure or delay of any party to enforce any provision
of this Agreement shall in no way affect the right of such party to enforce the
same or any other provision of this Agreement. The waiver by any party of any
breach of any provision of this Agreement shall not be construed as a waiver by
such party of any succeeding breach of such provision or a waiver by such party
of a breach of any other provision. The granting of any consent or approval by
any party in any one instance shall not be construed to waive or limit the need
for such consent or approval in any other or subsequent instance.
21. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of Florida applicable to contracts executed and to be
wholly performed within such State. The parties to this Agreement agree that any
suit, action or proceeding arising out of or relating to this Agreement
(including, without limitation, any action for the enforcement of an arbitration
award pursuant to Section 22 below) or any judgment entered by any court in
respect thereof shall be brought in the courts of Palm Beach County, Florida or
in the U.S. District Court for the Southern District of Florida. Each party
hereby (a) irrevocably accepts the exclusive personal jurisdiction of such
courts for the purpose of any action, suit or proceeding arising out of or
relating to this Agreement, (b) irrevocably waive, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of venue of any action, suit or proceeding arising out of or relating to this
Agreement or any judgment entered by any court in respect thereof brought in
such courts, and (c) irrevocably waive any claim that any action, suit or
proceeds brought in any such court has been brought in an inconvenient forum.
Each party further agrees that service of process, summons, notice or document
by U.S. registered mail in accordance with this Agreement shall be effective
service of process for any action, suit or proceeding brought against a party in
any such court.
22. ARBITRATION. The parties to this Agreement agree to arbitrate all
disputes, controversies or differences that may arise between them with respect
to any provision of this Agreement. Either party may give notice to the other of
its decision to arbitrate the dispute, and such notice shall specify the issue
or issues to be arbitrated. Each party shall select one arbitrator, and the two
arbitrators thereby selected shall select a third arbitrator. The arbitration
shall take place in Palm Beach County, Florida or such other place as the
parties shall agree, under the then-current Commercial Arbitration Rules of the
American Arbitration Association. The decision of a majority of the three
arbitrators, including any assessment of the cost of arbitration, will be final
and binding on the parties. The arbitrators will only have the authority to
award actual direct damages, and will not have the authority to award
consequential or punitive damages. Judgement upon the decision made by the
arbitrators may be entered in any court of competent jurisdiction.
23. SEVERABILITY. If any term or provision of this Agreement shall be
determined by a court of competent jurisdiction to be illegal, invalid or
unenforceable for any reason, the remaining
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provisions of this Agreement shall remain enforceable and the invalid, illegal
or unenforceable provisions shall be modified so as to be valid and enforceable
and shall be enforced.
24. SECTION HEADINGS. Section headings are included in this Agreement
for convenience of reference only, and shall in no way affect the meaning or
interpretation of this Agreement.
25. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
26. NUMBER OF DAYS. In computing the number of days for purposes of
this Agreement, all days shall be counted, including Saturdays, Sundays and
holidays; PROVIDED, HOWEVER, if the final day of any time period falls on a
Saturday, Sunday or holiday on which federal banks in the United States are or
may elect to be closed, then the final day should be deemed the next day which
is not a Saturday, Sunday or such holiday.
27. ATTORNEYS' FEES. In any action brought to enforce any provision of
Sections 9, 10 or 11 of this Agreement, the prevailing party shall be entitled
to recover reasonable attorneys' fees and costs from the other party to the
action or proceeding. For purposes of this Agreement, the "prevailing party"
shall be deemed to be that party who obtains substantially the result sought,
whether by settlement, mediation, judgment or otherwise, and "attorneys' fees"
shall include, without limitation, the actual attorneys' fees incurred in
retaining counsel for advice, negotiations, suit, or other legal proceeding,
including mediation and arbitration.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
CORPORATE BUYING SERVICE INC.
By: /s/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxxx
President
EXECUTIVE
By: /s/ XXXXXXX XXXXXX
-------------------------------------
Xxxxxxx Xxxxxx, Individually
Address:
000 Xxxxxxxx Xx.
-------------------------------------
XxxXxx Xxxxx, XX 00000
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