Contract
EMPLOYMENT AGREEMENT dated June 23, 2010,
between Roadships Holdings, Inc., a Delaware Corporation, with a principal place
of business at City Center, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx XX
00000 ( “Company”) and Voltaire Xxxxx, an individual residing at 000
Xxxxxx Xxx. #000, Xxxxxxxx, XX 00000 (“Executive”).
R E C I T A L
S
Whereas, Executive’s leadership and
services shall constitute a major factor in the successful growth and
development of the Company, its subsidiaries and affiliates; and
Whereas, the Company desires to
employ and retain the unique experience, ability and services of Executive Vice
President and Director and desires to retain Executive’s services in an advisory
and consulting capacity and to prevent any other competitive business from
securing his services and utilizing his experience, background and
expertise.
Whereas, the terms, conditions and
undertakings of this Agreement were submitted to, and duly approved and
authorized by the Company’s Board of Directors at a meeting held on May 20,
2010.
NOW THEREFORE in consideration
of the mutual promises, terms, conditions and undertakings hereinafter set
forth, it is agreed between the parties as follows:
1. Employment
(a) Executive
Employment: The Company employs Executive and Executive
accepts employment in a principal executive and managerial capacity until May
15, 2013. After January 1, 2011, either Executive or the Company may,
at any time terminate Executive’s Executive Employment subject to the
restrictions and conditions hereinafter contained on four (4) months prior
written notice to the other party.
(b) Automatic
Renewal: This Agreement shall be renewed automatically for
succeeding terms of three (3) years each unless either party gives written
notice to the other at least ninety (90) days prior to the expiration of any
term of Executive’s or Company’s intention not to renew pursuant to Company’s
bylaws.
(c) “Executive Employment”
Defined: “Executive Employment” as used herein refers to the
entire period of employment of Executive by Company, whether for the periods
provided above, or whether terminated earlier as hereinafter provided or
extended by mutual agreement between the Company and Executive.
(d) Advisory
Period: If Executive’s Executive Employment is terminated as
provided for in paragraph (a) above and such termination was not with cause,
then the Company shall have the option to retain him as an advisor and
consultant for a period of two years after termination (the “Advisory
Period”).
2. Duties and
obligations.
(a)
Executive shall serve as Executive Vice President of the Company. In
Executive’s capacity, Executive shall do and perform all services, acts, or
things necessary or advisable to manage and conduct the business of Company,
including business development, acquisition strategist, managerial finance, MNA
structure and execution, operations coordinator and day to day corporate
operations.
(b)
During the period of Executive’s Executive Employment, Executive shall devote
full time to such employment. If elected, he shall serve as a
director and/or officer of the Company and any of its subsidiaries and
affiliates (hereinafter collectively referred to as “Company Subsidiaries”) and
shall perform duties customarily incidental to such offices and all other duties
the Board of Directors of the Company and the Company Subsidiaries or
affiliates, may, from time to time, assign to Executive. If Executive
is presently a member of the Board and/or an officer of the Company and a member
of the Board and/or an officer of the Company Subsidiaries and affiliates, then
Executive shall perform duties customarily incidental to such offices and all
other duties the Board of Directors may, from time to time assign, and have
assigned to him.
(c) During
the term of employment, Executive shall diligently and conscientiously devote
his entire time, attention and effort to the tasks which Company or its owners
shall assign to him. The expenditure of time for educational,
charitable and professional activities shall not be deemed a breach of this
Agreement if those activities do not materially interfere with the services
required under this Agreement and shall not require the prior written consent of
the Board of Directors. If the Executive is elected or appointed as a
director or committee member, Executive shall serve in such capacity or
capacities without further compensation unless agreed to in writing by the
parties hereto. Nothing herein shall be construed, however, to require the
Executive’s election or appointment as a director or an officer.
(d) The
Executive shall exert his best efforts and devote substantially all of his time
and attention to the Company's affairs. The Executive shall be in charge of the
operation of the Company, and shall have full authority and responsibility,
subject to the general direction, approval, and control of the Company's Board
of Directors, for formulating policies and administering the Company.
Executive’s powers shall include the authority to hire and fire Company
personnel and to retain consultants when Executive deems necessary to implement
Company policies. Executive shall at all times, discharge his duties
in consultation with, and under the supervision of, the Company’s Board of
Directors. In the performance of Executive’s duties, Executive shall
make his principal office in such place as the Company’s Board of Directors and
Executive may, from time to time, agree.
(e) Competitive Activities and
Restrictions.
(1) During
the term of this contract Executive shall not, directly or indirectly, either as
an employee, company, consultant, agent, principal, partner, stockholder,
corporate officer, director, or in any other individual or representative
capacity, engage or participate in any business that is in competition in any
manner whatsoever with the business of Company without the prior written consent
of the Company.
(2)
Executive agrees that during the term of this contract and for a period of three
(3) years after termination of this Agreement, Executive shall not directly or
indirectly solicit, hire, recruit, or encourage any other employee of Company to
leave Company.
(3) Restrictive
Covenant. For a period of three (3) years after the termination or
expiration of this Agreement, the Executive shall not, directly or indirectly,
own, manage, operate, control, be employed by, participate in, or be connected
in any manner with the ownership, management, operation, or control of any
business similar to the type of business conducted by the Company at the time
this Agreement terminates. Because of the global nature of the
shipping and logistics industry and since the parties intend to operate the
company internationally, the radius (the “Radius”) of this restrictive covenant
shall include but not by way of limitation all of North America, South America,
Australia and New Zealand, Asia, Europe, Antarctica, Greenland, Africa and any
area deemed to be international waters or transboundary waters as defined from
time to time. In the event of the Executive's actual or threatened breach of
this paragraph, the Company shall be entitled to a preliminary restraining order
and injunction restraining the Executive from violating its provisions. Nothing
in this Agreement shall be construed to prohibit the Company from pursuing any
other available remedies for such breach or threatened breach, including the
recovery of damages from the Executive.
(4) For
a period of thirty-six (36) months after this Agreement has been terminated for
any reason, regardless of whether the termination is initiated by Company or
Executive, or for a period of time equal to the length of Executive's employment
with Company if such tenure is less than thirty-six (36) months, Executive will
not, directly or indirectly, solicit any person, company, firm, or corporation
who is or was a customer of Company during a period of five (5) years prior to
the termination of Executive's employment. Executive agrees not to solicit such
customers on behalf of himself or any other person, firm, company, or
corporation.
(5) The
Executive agrees that for a period of six (6) months after the termination of
his employment with Company, regardless of whether the termination was initiated
by Company or Executive, he will not accept employment with, or act as a
consultant, contractor, advisor, or in any other capacity for, a competitor of
the Company, or enter into competition with the Company, either by himself or
through any entity owned or managed in whole or in part by the Executive, within
the Radius. The term ''competitor,'' as used herein, means any entity primarily
engaged in the business of shipping, logistics, short sea
shipping, designing, building and operations, or primarily engaged in any
other business in which Company engages subsequent to the date of this
Agreement.
(6) The
parties have attempted to limit Executive's right to compete only to the extent
necessary to protect Company from unfair competition. The parties recognize,
however, that reasonable people may differ in making such a determination.
Consequently, the parties hereby agree that, if the scope or enforceability of
the restrictive covenant or the Radius is in any way disputed at any time, a
court or other trier of fact may modify and enforce the covenant to the extent
that it believes the covenant is reasonable under the circumstances existing at
that time.
(7)
Executive further acknowledges that (i) in the event Executive’s employment with
Company terminates for any reason, regardless of whether the termination is
initiated by Company or Executive, Executive will be able to earn a livelihood
without violating the foregoing restrictions; and (ii) Executive’s ability to
earn a livelihood without violating such restrictions is a material condition of
Executive’s employment with Company.
(f) Uniqueness of Executive’s
Services. Executive represents and agrees that the services to
be performed under the terms of this contract are of a special, unique, unusual,
extraordinary, and intellectual character that gives them a peculiar value, the
loss of which cannot be reasonably or adequately compensated in damages in an
action at law. Executive therefore expressly agrees that Company, in addition to
any other rights or remedies that Company may possess, shall be entitled to
injunctive and other equitable relief to prevent or remedy a breach of this
contract by Executive.
(g) Matters Requiring Consent of the
Board of Directors: Executive shall not, without the specific
approval of Company’s Board of Directors, do or contract to do any of the
following:
(1) Borrow, or otherwise assume
liability, on behalf of Company during any fiscal year an amount in excess of
Five Hundred ($500) Dollars;
(2) Permit any customer or client of
Company to become indebted to Company in an amount in excess of Five Hundred
($500) Dollars;
(3) Purchase capital equipment for
amounts in excess of the amounts budgeted and approved for expenditure by the
Board of Directors;
(4) Sell any single capital asset of
Company having a market value in excess of Five Hundred ($500) Dollars or a
total of capital assets during a fiscal year having a market value in excess of
Five Hundred ($500) Dollars; and
(5) Commit the Company to an
expenditure of more than Five Hundred ($500) Dollars in the development and sale
of new products and services.
3. Vacations and Personal
days. Executive shall be entitled to annual vacations, during
which time his Salary and compensation shall be paid, in a manner commensurate
with his status as a principal executive, which shall be two weeks per
year. Executive shall be entitled to five (5) unauthorized absences
per year and five (5) personal days. The personal days must be scheduled in
advance and are subject to the requirements of the Company. Any
unused Vacation and Personal days can be accrued from year to year.
4. Salary, Compensation,
Incentives and Benefits.
(a)
Executive’s salary shall be set at the discretion of the Board of Directors from
time to time.
(b) Bonus Incentive
Package.
(1) No incentive
compensation package has been contemplated.
(2) No Profit-Sharing Based on
Performance package has been contemplated.
(3) No Stock Bonus package has been
contemplated.
(4)
Warrants.
(i) Company
hereby grants Executive Warrants for the purchase of Ten Million (10,000,000)
shares of Company's common stock as compensation for services rendered or to be
rendered (equates to $0.001 per share), for a period of three years from the
date of this Agreement. The warrants may be exercised in whole or in part, but
may only be exercised in lots of Twenty Five Thousand (25,000) shares. Executive
shall not have any of the rights of, nor be treated as, a shareholder with
respect to the shares subject to these warrants until Executive has exercised
the warrant and has become the shareholder of record of those
shares.
(ii) The warrants are not
assignable.
(iii) The warrants may only be
exercised by Executive for three years following the date of this Agreement.
However, in the event that the employment term is terminated by Company for any
reason, Executive shall NOT retain the right to exercise any unused portion of
the warrants.
(c) Deferred Compensation.
N/A.
(d) Salary Continuation During Permanent
Disability. If Executive for any reason whatsoever becomes
permanently disabled so that Executive is unable to perform the duties
prescribed herein, this Agreement may be terminated at the option of the
Company.
(e) Effect of Death. If
Executive dies during the term of this Agreement, the Company shall have the
option to terminate.
(f) This Agreement shall not be in lieu
of any rights, benefits and privileges to which Executive may be entitled to as
an Executive of the Company under any retirement, pension, profit-sharing,
insurance, hospital or other plans which may now be in effect or which may
hereafter be adopted. Executive shall have the same rights and
privileges to participate in such plans and benefits as any other Executive
during Executive’s period of Executive Employment.
(g) Company agrees to
include Executive in the full coverage of medical, dental, and eye care
insurance if such coverage is acquired.
(h) Executive is entitled to receive
from Company all fringe benefits in effect for Company’s principal executive
officers.
5. Advisory
Compensation.
(a) Payment and
services. During the Advisory Period, the Company shall pay to
Executive an annual compensation equal to one-half of his Salary during the last
twelve month period of Executive’s employment (“Advisory Compensation”), to be
paid in equal monthly installments on the fifteenth (15th) day of each
month. While receiving such Advisory Compensation, Executive shall,
at all reasonable times, to the extent his physical and mental condition
permits, be available to consult with and advise the Company’s officers,
directors and other representatives. If Executive’s physical or
mental condition prevents him from fulfilling his consulting or advisory duties,
Executive shall still be entitled to the Advisory Compensation during the entire
Advisory Period. The parties agree that this advice and counsel shall
not entail full time service and shall be consistent with Executive's retirement
status
(b) Location: Executive
shall not be required, without his prior written consent, to render advisory
services at any place other than the principal place of business of the Company,
if Executive moves more than twenty-five (25) miles away from the Company’s
principal place of business.
(c) Restriction: During
the Advisory Period Executive shall be deemed to be an independent contractor
and shall be permitted to engage in any business or perform services for his own
account, provided that such business and services shall not be in competition
with, or be for a company that is in competition with, the Company or its
subsidiaries or affiliates.
6. Expenses.
(a) The
Company recognizes that Executive will have to incur certain out of pocket
expenses related to his services and the Company’s business and that it will be
extremely difficult to account for such expenses. It is understood that
Executive’s Salary and compensation is intended to cover all such out-of-pocket
expenses. The Company, however, shall reimburse Executive for any specific
preapproved expenditure incurred for travel, lodging, entertainment and similar
items upon the presentation to Company of an itemized account of such
expenditures. Each such expenditure shall be reimbursable only if it
is of a nature qualifying it as a proper deduction on the federal and state
income tax return of Company. Notwithstanding the foregoing, during
the Advisory Period the Company shall reimburse Executive for all preapproved
expenses incident to the rendering of advisory and consultant
services.
7. Insurance.
N/A.
8. Indemnification. The
Company shall indemnify the Executive and hold him harmless for all acts or
decisions made by him in good faith while performing services for the Company
and Company Subsidiaries and affiliates. The Company shall also use its best
efforts to obtain coverage for him under any insurance policy now in force or
hereinafter obtained during the term of this Agreement covering the other
officers and directors of the Company and Company Subsidiaries and affiliates
against lawsuits. The Company shall pay all expenses including attorney's fees,
actually and necessarily incurred by the Executive in connection with the
defense of such act, suit or proceeding, and in connection with any related
appeal, including the cost of court settlements.
9. Incapacity and
Termination.
(a) "Cause" for termination shall mean
(i) Employee's final conviction of a felony involving a crime of moral turpitude
or (ii) acts of Employee which, in the unanimous judgment of the Board,
constitute willful fraud on the part of Employee in connection with his duties
under this Agreement, including misappropriation or embezzlement in the
performance of duties as an employee of the Company, or willfully engaging in
conduct materially injurious to the Company and in violation of the covenants
contained in this Agreement.
(b) Termination. This
Agreement may be terminated by the Company with the express approval of the
Board of Directors, without prior notice to Executive on account of Executive’s
gross misconduct, a violation of this Agreement, habitual neglect of the
Executive to perform his duties under this Agreement, Executive’s acts of
dishonesty or other conduct which damages the reputation or standing of the
Company, Executive’s unauthorized disclosure of confidential information or
trade secrets, dishonesty, fraud, misrepresentation or other acts of moral
turpitude as would prevent the effective performance of Executive’s duties and
Executive’s breach of Executive’s duty of loyalty to Company.
(c) Termination upon sale of
Company: Notwithstanding anything to the contrary, the Company
may terminate this Agreement by giving ten (10) days notice to the Executive if
any of the following events occur:
(1) the Company sells substantially all
of its assets to a single purchaser or to a group of associated
purchasers;
(2) at least two-thirds of the
outstanding corporate shares of the Company are sold, exchanged, or otherwise
disposed of, in one transaction;
(3) the Company elects to terminate its
business or liquidate its assets; or
(4) there is a merger or consolidation
of the Company in a transaction in which the Company’s s shareholders receive
less than fifty (50%) percent of the outstanding voting shares of the new or
continuing corporation.
(d) Effect of Merger, Consolidation,
transfer of assets, or Dissolution.
(1) This agreement shall not
be terminated by any voluntary or involuntary dissolution of Company resulting
from either a merger or consolidation in which Company is not the consolidated
or surviving corporation, or a transfer of all or substantially all of the
assets of Company.
(2) In the event of any such
merger or consolidation or transfer of assets, Company's rights, benefits, and
obligations hereunder shall be assigned to the surviving or resulting
corporation or the transferee of Company's assets.
10. Executive’s Stock Holdings
in Company
(a) Disposition of Stock during
Lifetime. Except to the extent as provided for by Rule 144 of
the Securities and Exchange Act, Executive shall not dispose of any of the
shares of stock of the Company now or hereafter owned by him except pursuant to
the terms of this agreement or with the written consent of Xxxxxxx Xxxxxx, CEO
or Xxxxxx Xxxxx, Corporate Secretary, so long as at the applicable time these
individuals are still shareholders (hereinafter “the other
Stockholders”). The word "dispose" as herein used shall mean to sell,
assign or transfer, with or without consideration, encumber, pledge,
hypothecate, or otherwise dispose of shares of stock in the
Company.
(1) If
wishing to dispose of his shares, Executive shall first give written notice to
the Company pursuant to the terms of paragraph 20. Within thirty (30)
days after the receipt of such notice, the Company, out of its surplus, shall
have the option, but not the obligation, to purchase all of the Executive’s
shares of stock at a mutually agreed upon price per share. If such
option is not exercised by the Company, the Stockholders to purchase all of the
Executive’s shares. The exercise of this option shall be in
writing and mailed pursuant to the terms of paragraph 20 to the Executive and
the Company. In either event, whether the Company or the other
Stockholders elect to purchase, the notice accepting the offer shall specify the
date for the closing of the purchase which shall be not more than thirty (30)
days after the receipt by the Executive of such acceptance notice given by the
Company or Stockholder(s), as the case may be.
(2) The
purchase price shall be the per share published market price;
(3) If
the offer to sell is neither accepted by the Company nor by the other
Stockholders, the Executive may, thereafter, make a bona fide transfer or
dispose of their shares of stock to a prospective outside purchaser, in which
event said third party shall hold such shares subject to the terms, conditions,
and restrictions of the shares or this agreement and shall become a signatory
thereto.
(i) The
Executive, in such case, shall give written notice to the Company and, as
applicable, Stockholder(s) specifying the name and address of the prospective
outside purchaser and the terms of the proposed transaction with said
outsider. There shall be annexed to the said notice a copy of the
contract, if any, between the Executive and the outsider. The Company
shall thereupon, in the first instance, have a further option to consummate the
transaction with the Executive at the same price and at the same terms as
specified in said notice, or, alternatively, if the Company shall be unable or
shall refuse to exercise said further option, then the Stockholders may do so as
provided herein.
(ii) If
such further option be exercised by the Company or other Stockholders, notice
shall be given to the Executive of the willingness of the Company, in the first
instance, or, as applicable, Stockholder(s), in the second instance, to close
the transaction on the basis offered by an outsider. In either event,
whether the Company or the other Stockholders elect to meet the outsider's
terms, the acceptance notice shall specify the date for the closing of the
transaction which shall not be later than that of the proposed transaction with
said outsider.
(iii) If
the Company or, as applicable, the Stockholder(s), for any reason whatsoever,
fail to exercise either the first option provided for under this agreement or
the further option, in either of such cases the Executive’s shares of stock
shall be freed from the restrictions of this agreement and the said shares of
stock may be sold to any outsider upon such terms as the Executive may see fit
to offer and an outsider may see fit to accept. If the Executive
consummates a sale with an outsider under the provisions of this paragraph of
the agreement, in such case, the Executive shall furnish copies of all documents
executed with the outsider within five (5) days after their execution and
delivery
(b) Purchase of Stock Upon
Death
(1) Obligatory Purchase and
Sale. Upon the death of the Executive, the Company shall be given first
right of refusal to purchase all or a portion of his shares of stock, or the
shares of stock to which he or his personal representative shall be entitled, at
a price equal market or an otherwise mutually agreed upon price.
(2) Terms of
Payment. The
Company shall pay to the personal representative of the Executive the purchase
price, as hereinabove determined, as a onetime cash settlement or as otherwise
agreed to in writing and attached to this agreement.
(3) Failure of Corporation to
Purchase. If
the Company, for any reason whatsoever, shall fail or refuse to purchase all of
the shares of the Executive, then, the stock shall be sold at market price and
demand.
(c) Purchase Price
(1) The
purchase price of any stock of the Company sold, purchased or retired pursuant
to any provision of this Agreement shall be determined based on the published
market price of the Company’s stock.
(3) No
allowance of any kind shall be made for good will, trade name or similar
intangible asset(s), beyond that assigned by market price.
(d) Involuntary
Assignments
(1) In
the event that the Executive shall be divested of title to his shares of capital
stock by involuntary sale, assignment or transfer, (as, for example, but without
limiting the generality thereof, by sale under levy of attachment or execution,
or sale in connection with bankruptcy or other court process) or transfer to a
spouse in satisfaction of marital rights in connection with a separation or
divorce, the person, firm or corporation acquiring such stock (hereinafter
called the “Judicial Assignee"), shall take and hold such shares of capital
stock subject to all the restrictions and obligations as was the
Executive.
(2) Within
thirty (30) days after such stock is transferred to the Judicial Assignee on the
books of the Company, if such transfer be deemed proper by the Company, the
Company may (but shall not be obligated to), by written notice given to the
Judicial Assignee, elect to purchase from the Judicial Assignee the subject
stock for the same amount as the Judicial Assignee paid for the stock, or an
otherwise mutually agreed upon price.
11. Ownership in
Company. All ideas, inventions, trademarks, and other
developments or improvement conceived by Executive, alone or with others, during
the term of employment, whether or not during working hours, that are within the
scope of Company's business operations, or that relate to any Company or Company
Subsidiaries work or projects, are the exclusive property of the Company.
Executive agrees to assist the Company and Company Subsidiaries, at its expense,
to obtain patents on any patentable ideas, inventions, trademarks, and other
developments, and agrees to execute all documents necessary to obtain the
patents in the name of the Company or Company Subsidiaries.
12. Nondisclosure. Executive
shall be dealing with Company's confidential information, inventions, trade
secrets, and processes which are Company's sole and exclusive
property. Executive agrees that Executive shall neither disclose to
anyone, directly or indirectly, without the prior written consent of the
Company, Company's confidential information, nor will Executive use said
confidential information outside the scope of Executive’s employment. All
documents that Executive prepares and all confidential information provided to
Executive as a result of or related to Executive’s employment shall, at all
times, remain the exclusive property of the Company, and will remain in
Company's possession on its premises. Under no circumstances, may Executive
remove any confidential information or documents from Company's
premises.
13. Client
Information. The Executive acknowledges that the list of the
Company's Clients and Brokers, as the Company may determine from time to time,
is a valuable, special, and unique asset of the Company's business. The
Executive shall not, during and after the term of his employment, disclose all
or any part of the Executive's customer list to any person, firm, corporation,
association, or other entity for any reason or purpose. In the event of the
Executive's breach or threatened breach of this paragraph, the Company shall be
entitled to a preliminary restraining order and an injunction restraining and
enjoining the Executive from disclosing all or any part of the Company's Client
list and from rendering any services to any person, firm, corporation,
association, or other entity to whom all or any part of such list has been, or
is threatened to be, disclosed. In addition to or in lieu of the above, the
Company may pursue all other remedies available to the Company for such breach
or threatened breach, including the recovery of damages from the
Executive.
14. Trade
Secrets.
(a) The parties acknowledge
and agree that during the term of this agreement and in the course of the
discharge of Executive’s duties hereunder, Executive shall have access to and
become acquainted with financial, personnel, sales, scientific, technical and
other information regarding formulas, patterns, compilations, programs, devices,
methods, techniques, operations, plans and processes that are owned by Company,
actually or potentially used in the operation of Company's business, or obtained
from third parties under an agreement of confidentiality, and that such
information constitutes Company's ''trade secrets.''
(b) Executive specifically
agrees that Executive shall not misuse, misappropriate, or disclose in writing,
orally or by electronic means, any trade secrets, directly or indirectly, to any
other person or use them in any way, either during the term of this agreement or
at any other time thereafter, except as is required in the course of Executive’s
employment.
(c) Executive acknowledges
and agrees that the sale or unauthorized use or disclosure in writing, orally or
by electronic means, of any of Company's trade secrets obtained by Executive
during the course of Executive’s employment under this agreement, including
information concerning Company's actual or potential work, services, or
products, the facts that any such work, services, or products are planned, under
consideration, or in production, as well as any descriptions thereof, constitute
unfair competition. Executive promises and agrees not to engage in any unfair
competition with Company, either during the term of this Agreement or at any
other time thereafter
(d) Executive further agrees
that all files, records, documents, drawings, specifications, equipment,
software, and similar items whether maintained in hard copy or on-line relating
to Company's or Company Subsidiaries’ business, whether prepared by Executive or
others, are and shall remain exclusively the property of Company and that they
shall be removed from the premises or, if kept on-line, from the computer
systems of Company only with the express prior written consent of the
Company.
15. Use of Executive’s
Name.
(a) Company shall have the right to use
the name of Executive as part of the trade name or trademark of Company if it
should be deemed advisable to do so. Any trade name or trademark, of which the
name of Executive is a part, that is adopted by Company during the employment of
Executive may be used thereafter by Company for as long as Company deems
advisable.
(b) Executive shall not, either during
the term of this Agreement or at any time thereafter, use or permit the use of
Executive’s name in the trade name or trademark of any other enterprise if that
other enterprise is engaged in a business similar in any respect to that
conducted by Company, unless that trade name or trademark clearly indicates that
the other enterprise is a separate entity entirely distinct from and not to be
confused with Company and unless that trade name or trademark excludes any words
or symbols stating or suggesting prior or current affiliation or connection by
that other enterprise or its employees with Company.
16. Nontransferability. Neither
Executive, Executive’s spouse, nor their estates shall have any right to
commute, anticipate, encumber or dispose of any payment under this
Agreement. Such payments and accompanying rights are nonassignable
and nontransferable, expect as otherwise specifically provided for in this
Agreement.
17. Breach of the
Agreement. In the event of any claimed breach of this
Agreement, the party claimed to have committed the breach will be entitled to
written notice of the alleged breach and a period of ten (10) days in which to
remedy such breach. Executive acknowledges and agrees
that a breach of any of the covenants contained in this Agreement will result in
irreparable and continuing harm to the Company for which there will be no
adequate remedy at law. The Company will be entitled to preliminary and
permanent injunctive relief to restrain Executive from violating the terms and
conditions of this Agreement in addition to other available remedies, at law and
in equity.
(1)
Executive acknowledges that: (i) compliance with Paragraphs 2(e), (f), and (g)
is necessary to protect the Company's business and good will; (ii) a breach of
those Paragraphs will irreparably and continually damage Company; and (iii) an
award of money damages will not be adequate to remedy such harm.
(2)
Consequently, Executive agrees that, in the event he breaches or threatens to
breach any of these covenants, Company shall be entitled to both: (i) a
preliminary or permanent injunction in order to prevent the continuation of such
harm; and (ii) money damages, insofar as they can be determined, including,
without limitation, all reasonable costs and attorneys' fees incurred by the
Company in enforcing the provisions of this Agreement. Nothing in this
Agreement, however, shall prohibit Company from also pursuing any other
remedy.
(3) If,
after the expiration of the three (3) year period referred to in Paragraph 2(e)
hereof, Executive becomes affiliated with any business that competes with
Company, either as a shareholder, manager, partner, creditor, employee,
consultant, agent or independent contractor, or a customer or account of Company
becomes a customer or account of the competing business with which Executive is
affiliated, this fact shall be presumptive evidence that Executive has breached
the terms of this Agreement, and the burden of proving otherwise shall rest upon
Executive.
(4) As
money damages for the period of time during which Executive violates these
covenants, Company shall be entitled to recover the full amount of any fees,
compensation, or other remuneration earned by Executive as a result of any such
breach.
18. Binding
Effect. This Agreement shall inure to the benefit of, and be
binding upon, the Company, its successors and assigns, including without
limitation, any person, partnership, company or corporation which may acquire
substantially all of the Company’s assets or business or with or into which the
Company may be liquidated, consolidated or otherwise combined. In
addition, this Agreement shall inure to the benefit of, and be binding upon,
Executive, Executive’s heirs, distributes, assigns, and personal
representatives.
19. Waiver. The
failure of either party to insist in any one or more instances upon performance
of any term or condition of this Agreement shall not be construed as a waiver of
future performance. The obligations of either party with respect to
such term, covenant or condition shall continue in full force and
effect.
20. Notice. Any
notice given hereunder shall be in writing and delivered or mailed by first
class mail and either reputable overnight delivery service or registered
certified mail return receipt requested to the parties at the following
addresses:
Company: Roadships
Holdings, Inc.
000 Xxxxx
Xxxxx Xxxxxx
Xxxxx
0000 Xxxx Xxxxxx
Xxxxxxxxx
XX 00000
000-000-0000
Executive: Voltaire
Xxxxx
000
Xxxxxx Xxx.
#000
Xxxxxxxx,
XX 00000
21. Entire
Agreement. This Agreement supersedes all previous agreements
between Executive and Company and contains the entire understanding and
agreement between the parties with respect to its subject
matter. This Agreement cannot be amended, modified or supplemented in
any respect except by a subsequent written agreement entered into by both
Executive and Company.
22. Headings. Headings
in this Agreement are for convenience purposes only and shall not be used to
interpret or construe its provisions.
23. Governing
Law. This Agreement shall be construed in accordance with and
be governed by the laws of the State of Delaware.
24. Arbitration. Any
dispute or claim arising from or in any way related to this agreement shall be
settled by arbitration in North Carolina at the option of Company. All
arbitration shall be conducted in accordance with the rules and regulations of
the American Arbitration Association ("AAA"). AAA shall designate a panel of
three arbitrators from an approved list of arbitrators following both parties'
review and deletion of those arbitrators on the approved list having a conflict
of interest with either party. Each party shall pay its own expenses associated
with such arbitration. A demand for arbitration shall be made within
a reasonable time after the claim, dispute or other matter has arisen and in no
event shall such demand be made after the date when institution of legal or
equitable proceedings based on such claim, dispute or other matter in question
would be barred by the applicable statutes of limitations. The
decision of the arbitrators shall be rendered within sixty (60) days of
submission of any claim or dispute, shall be in writing and mailed to all the
parties included in the arbitration. The decision of the arbitrator
shall be binding upon the parties and judgment in accordance with that decision
may be entered in any court having jurisdiction thereof.
24. Severability. If
any provision of this Agreement is held to be illegal or invalid by a court of
competent jurisdiction, such provision shall be deemed to be severed and deleted
and neither such provision, nor its severance and deletion, shall affect the
validity of the remaining provisions.
IN WITNESS HEREOF, the parties
have executed this Agreement the day and year above written.
Executive
Company
/s/ Voltaire
Xxxxx /s/Xxxxxxx
Xxxxxx
Voltaire
Xxxxx Roadships
Holdings, Inc.
By: Xxxxxxx Xxxxxx, CEO
Corporate
Seal
Attest:
/s/ Xxxxxx
Xxxxx
Xxxxxx
Xxxxx
Corporate
Secretary
