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EXHIBIT 6.5
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made this ___ day of __________, 2001 by and between
ULTRASTRIP SYSTEMS, INC., a Florida corporation (the "Company"), and XXXXX X.
XXXXX ("Executive").
In consideration of the mutual covenants and agreements herein contained, the
compensation to be paid hereunder and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. TERM OF EMPLOYMENT. The Company hereby employs Executive and Executive hereby
accepts employment with the Company for a period retroactively commencing as of
January 1, 2001 and terminating, unless sooner terminated as provided herein, on
December 31, 2003. If both parties hereto are pleased with the state of the
relationship, they shall commence discussions no later than June 1, 2003
concerning renewal of the employment period. This Agreement shall automatically
renew for a twelve (12) month period on the terms herein set forth unless the
Company shall have notified Executive by July 31, 2003 that the Agreement shall
not be renewed.
2. DUTIES OF EXECUTIVE. Executive is hereby hired and employed by the Company as
its Director of Contract Services to perform the duties and accept the
responsibilities typical for such position and shall devote his efforts to
rendering services to the Company in such capacity. Executive shall not be
required without his consent to undertake responsibilities not commensurate with
his position.
3. COMMITMENT. During the term hereof, Executive shall devote substantially all
of his productive time, ability and attention to the business of the Company.
4. COMPENSATION OF EXECUTIVE.
(a) BASE SALARY. Executive shall be entitled to receive from the
Company a base salary ("Base Salary") of eighty five thousand dollars ($85,000)
per year, payable in accordance with the normal payroll practices of the
Company.
(b) INCENTIVE BONUSES. In addition to his Base Salary, the Company
shall pay Executive the following sums as bonuses: (i) upon execution of this
Agreement, the Company shall issue to Executive seventy five thousand (75,000)
shares of common stock as a signing bonus; and (ii) an annual incentive cash
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bonus ("Incentive Bonus") based upon the Company's and the Executive's
performance, in such amount as may be determined by the Board of Directors (the
"Board"). Each Incentive Bonus shall be payable to Executive during the last
week of December of each year of the term hereof.
(c) STOCK OPTION. As additional compensation, Executive shall be
granted upon execution of this Agreement an incentive stock option to acquire
one hundred fifty thousand (150,000) shares of the Company's common stock at an
exercise price of three dollars ($3.00) per share, exercisable as to thirty
three thousand three hundred thirty three (33,333) shares on and after the last
day of December of each of 2001, 2002, 2003 and 2004 and as to sixteen thousand
six hundred sixty eight (16,668) on and after the last day of December, 2005,
cumulatively, through December 31, 2006.
5. EXECUTIVE BENEFITS. Executive and his dependents shall be included as
beneficiaries at the Company's expense under the Company's group health
insurance policy. Executive shall be entitled to receive all additional benefits
generally made available to executives of the Company.
6. VACATION. Executive shall be entitled to four (4) non-consecutive weeks off
for vacation at full pay during each twelve (12) month period of the term
hereof.
7. REIMBURSEMENT OF EXECUTIVE EXPENSES. In the course of his employment
Executive shall be expected to incur various business expenses customarily
incurred by persons holding like positions, including, but not limited to,
traveling, entertainment and similar expenses, for the benefit of the Company.
Subject to the Company's policy regarding the reimbursement of such expenses,
the Company shall reimburse Executive for such expenses from time to time, at
Executive's request, and Executive shall account to the Company for such
expenses.
8. TERMINATION BY THE COMPANY.
(a) The Company shall have the right to terminate this Agreement under
the following circumstances:
(i) Upon the death of Executive;
(ii) Upon notice from the Company to Executive in the event of
an illness or other disability which has incapacitated him from performing his
duties for twelve (12) consecutive weeks as determined in good faith by the
Board; or
(iii) For "good cause" upon notice from the Company.
Termination by the Company of Executive's employment for "good cause" shall be
limited to the following circumstances:
(A) Executive is convicted of, pleads guilty to or
pleads NOLO CONTENDERE to a felony crime involving moral turpitude;
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(B) Executive is found guilty of or pleads no contest
to fraud, conversion, embezzlement, falsifying records or reports or a similar
crime involving the Company's property;
(C) Executive willfully breaches this Agreement,
which breach remains uncured thirty (30) days after written notice thereof shall
have been sent to Executive;
(D) The voluntary resignation by Executive as an
employee of the Company (except pursuant to Section 9); or
(E) Insubordination or incompetence, as reasonably
determined by the Board after Executive has had the opportunity to address the
Board with respect to the matter.
(b) If this Agreement is terminated pursuant to Section 8(a) above,
Executive's rights and the Company's obligations hereunder shall forthwith
terminate except as expressly provided in this Agreement.
(c) If this Agreement is terminated pursuant to Section 8(a)(i) or (ii)
hereof, Executive or his estate shall be entitled to receive:
(i) A cash payment equal to Executive's Base Salary hereunder
for a twelve (12) month period, payable within thirty (30) days of the date of
such termination; and
(ii) All Incentive Bonuses granted to him by the Board
pursuant to Section 4(b) above.
The Company may purchase insurance to cover all or any part of its obligations
set forth in this Section 8(c), and Executive agrees to take a physical
examination to facilitate the obtaining of such insurance. However, death and
disability benefits are not conditioned upon the Executive's insurability or the
Company's obtaining insurance.
(d) Whenever compensation is payable to Executive hereunder during a
time when he is partially or totally disabled and such disability (except for
the provisions hereof) would entitle him to disability income or to salary
continuation payments from the Company according to the terms of any plan now or
hereafter provided by the Company or according to any Company policy in effect
at the time of such disability, the compensation payable to him hereunder shall
be inclusive of any disability income or salary continuation and shall not be in
addition thereto. If disability income is payable directly to Executive by an
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insurance company under an insurance policy paid for by the Company, the amounts
paid to him by said insurance company shall be considered to be part of the
payments to be made by the Company to him pursuant to this Section, and shall
not be in addition thereto.
9. TERMINATION BY EXECUTIVE. Executive shall have the right to terminate his
employment under this Agreement upon thirty (30) days' notice to the Company
given within sixty (60) days following the occurrence of any of the following
events:
(a) Executive is not appointed or retained as the Company's Director of
Contract Services; or
(b) The Company materially reduces Executive's duties and
responsibilities hereunder. Executive's duties and responsibilities shall not
be deemed materially reduced for purposes hereof solely by virtue of the fact
that the Company is (or substantially all of its assets are) sold to, or is
combined with, another entity.
10. CONSEQUENCES OF BREACH BY THE COMPANY.
(a) If this Agreement is terminated pursuant to Section 9 hereof, or if
the Company shall terminate Executive's employment under this Agreement for any
reason other than as set forth in Section 8(a), the following shall apply:
(i) Executive shall receive a cash payment equal to the
Executive's Base Salary hereunder for a twelve (12) month period, payable within
thirty (30) days of the date of such termination; and
(ii) Executive shall be entitled to all Incentive Bonuses
granted to him by the Board pursuant to Section 4(b) above.
(b) If any benefit under the preceding subsection is finally determined
by the Internal Revenue Service to be an "Excess Parachute Payment" under
Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), the
Company shall pay Executive an additional amount such that (x) the excess of
all Excess Parachute Payments (including payments under this sentence) over the
sum of excise tax thereon under Section 4999 of the Code and income tax thereon
under Subtitle A of the Code and under applicable state law is equal to (y) the
excess of all Excess Parachute Payments (excluding payments under this
sentence) over income tax thereon under Subtitle A of the Code and under
applicable state law.
11. REMEDIES. The Company recognizes that because of Executive's special talents
and stature, in the event of termination by the Company hereunder (except under
Section 8(a)), or in the event of termination by Executive under Section 9,
before the end of the agreed term, the Company acknowledges and agrees that the
provisions of this Agreement regarding further payments of Base Salary and
Incentive Bonuses constitute fair and reasonable provisions for the consequences
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of such termination, do not constitute a penalty, and such payments and benefits
shall not be limited to or reduced by amounts Executive might earn or be able to
earn from any other employment or ventures during the remainder of the agreed
term of this Agreement.
12. COVENANT NOT TO COMPETE; DISCLOSURE OF INFORMATION. Executive agrees to
receive confidential and proprietary information of the Company in strict
confidence, and not to disclose such information to others except as authorized
in writing by the President of the Company or as required by law. Confidential
and proprietary information shall mean information not generally known to the
public that is created by or disclosed to Executive as a consequence of his
employment by the Company. Additionally, for a two (2) year period following the
termination pursuant to Section 8(a) or expiration hereof, Executive shall not
engage in any activities substantially similar to or in competition with the
business of the Company.
13. NOTICES AND DEMANDS. Any notice or demand which, by any provision of this
Agreement or any agreement, document or instrument executed pursuant hereto,
except as otherwise provided therein, is required or provided to be given shall
be deemed to have been sufficiently given or served for all purposes if sent by
certified or registered mail, postage and charges prepaid, to the following
addresses: if to the Company, Attention: Xxxxxx X. XxXxxxx, 0000 X.X. Xxxxxx
Xxxxxxx, Xxxxxx, Xxxxxxx 00000, or at any other address designated by the
Company to Executive in writing, and if to Executive,
______________________________, Florida __________ or at any other address
designated by Executive to the Company in writing.
14. SEVERABILITY. In case any covenant, condition, term or provision contained
in this Agreement shall be held to be invalid, illegal or unenforceable in any
respect, in whole or in part, by judgment, order or decree of any court or other
judicial tribunal of competent jurisdiction, from which judgment, order or
decree no further appeal or petition for review is available, the validity of
the remaining covenants, conditions, terms and provisions contained in this
Agreement, and the validity of the remaining part of any term or provision held
to be partially invalid, illegal or unenforceable, shall in no way be affected,
prejudiced or disturbed thereby.
15. WAIVER OR MODIFICATION. No waiver or modification of this Agreement or of
any covenant, condition or limitation herein contained shall be valid unless in
writing and duly executed by the party to be charged therewith. Furthermore, no
evidence of any waiver or modification shall be offered or received in evidence
in any proceeding, arbitration or litigation between the parties arising out of
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or affecting this Agreement, or the rights or obligations of any party
hereunder, unless such waiver or modification is in writing and duly executed as
aforesaid. The provisions of this Section may not be waived except as herein
set forth.
16. COMPLETE AGREEMENT. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter of this Agreement and
supersedes any and all previous agreements between the parties, whether written
or oral, with respect to such subject matter.
17. APPLICABLE LAW, BINDING EFFECT AND VENUE. This Agreement shall be construed
and regulated under and by the laws of the State of Florida, and shall inure to
the benefit of and be binding upon the parties hereto and their heirs, personal
representatives, successors and assigns. Venue for any action related to or
arising out of this Agreement shall lie in Xxxxxx County, Florida.
IN WITNESS WHEREOF, the undersigned have executed this Employment Agreement as
of the date first written above with the intent to be legally bound.
ULTRASTRIP SYSTEMS, INC.
By: /s/ Xxxxxx X. XxXxxxx
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Xxxxxx X. XxXxxxx, President
/s/ XXXXX X. XXXXX
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XXXXX X. XXXXX
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