Exhibit 10.04
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into,
effective for all purposes and in all respects as of the 1st day of December,
1998, by and between U.S.A. FLORAL PRODUCTS, INC., a Delaware corporation (the
"Company"), and XXXXXX XXXXXXX ("Employee").
R E C I T A L S
A. Employee is currently employed in the capacity as Chief Executive
Officer, President and Chairman of the Board of the Company, under the terms and
conditions of an Employment Agreement, dated as of April 22, 1997, between the
parties, which agreement was amended on August 6, 1997 (the "Prior Agreement").
B. The parties desire to continue the employ of the Employee in such
capacity under the terms and conditions set forth in this Agreement, which
Agreement supersedes the Prior Agreement in its entirety.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
herein contained and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending
legally to be bound, hereby agree as follows:
1. Employment and Duties.
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(a) The Company hereby employs Employee as Chief Executive Officer of
the Company. As such, Employee shall have responsibilities, duties and
authority reasonably accorded to and expected of a chief executive officer,
president and chairman of the board and will report directly to the Board of
Directors of the Company (the "Board") or such committee as may be designated by
the Board. Employee hereby accepts this employment upon the terms and
conditions herein contained and agrees to devote his time, attention and efforts
to promote and further the business of the Company.
(b) The Company shall use its best efforts to cause Employee to be
elected to the Board and serve as its Chairman throughout the Term and shall
include him in the management slate for election as a director at every
stockholders' meeting at which his term as a director would otherwise expire.
If requested by the Board, Employee shall serve as a member of the board of
directors of any one or more subsidiaries of the Company.
(c) Employee shall faithfully adhere to, execute and fulfill all
policies established by the Company.
(d) Employee shall not, during the Term of his employment hereunder,
be engaged in any other business activity pursued for gain, profit or other
pecuniary advantage if such activity interferes with Employee's duties and
responsibilities hereunder; provided that,
with the approval of the Board (which approval shall not unreasonably be
withheld), from time to time, Employee may serve, or continue to serve, on the
board of directors of, and hold any other offices or positions, in companies or
organizations, which in the Board's judgment, will not present any conflict of
interest with the Company, its subsidiaries or affiliates, or materially
adversely affect the performance of Employee's duties pursuant to this
Agreement.. However, the foregoing limitations shall not be construed as
prohibiting Employee from making and managing personal investments in such form
or manner as will neither require his services in the operation or affairs of
the companies or enterprises in which such investments are made, nor violate the
terms of paragraph 5 hereof.
2. Cash Compensation. For all services rendered by Employee hereunder,
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the Company shall compensate Employee as follows:
(a) Base Salary. Effective as of the date hereof, the base salary
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payable to Employee during the Employment Period shall be at the per annum rate
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of Five Hundred Thousand Dollars ($500,000), payable on a regular basis in
accordance with the Company's standard payroll procedures, but not less than
monthly. On at least an annual basis, the Company will consider increases (but
not decreases) to Employee's base salary. In considering such increases, the
Company shall take into account the Xxxxxxx X. Xxxxxx Executive Compensation
Survey for the most recently available year.
(b) Incentive Bonus. For the Company's 1998 fiscal year, the Company
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shall determine, in its discretion, the annual bonus, if any, that shall be
payable in respect of the performance of the Company and Employee in 1998. For
each fiscal year thereafter that ends during the Term, Employee shall be
entitled to receive an annual bonus of no less than 50% of Employee's base
salary then in effect, if the Company's consolidated earnings per share for such
year (after giving effect to all annual bonuses) equals or exceed analysts'
consensus estimates (as provided by First Call) for such year as an in effect on
January 1 of such year. Additionally, at the sole discretion of the Company,
Employee may be considered for an additional annual bonus based upon the
achievement of annual Company and/or individual performance goals to be set by
the Company. Notwithstanding anything contained in this Agreement to the
contrary (including paragraph 7 hereof), if (A) Employee's employment hereunder
has terminated for any reason, except by the Company for cause (as defined
below) or by Employee voluntarily without good reason (as defined below) prior
to the end of a given fiscal year, or (B) if Employee's employment terminates
for any reason at the expiration of the Term of this Agreement, Employee shall
receive (at the time bonuses are normally paid) the annual incentive bonus, if
any, that would have been paid for such fiscal year had Employee remained
employed until the end of such year, multiplied by a fraction, the numerator of
which is the number of complete months of such fiscal year during which Employee
was employed with the Company, and the denominator of which is twelve.
3. Stock Options. Employee shall be granted stock options or other
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awards during the Employment Period pursuant to the Company's 1997 Long Term
Incentive Plan as determined in the discretion of the Compensation Committee.
Upon a termination of Employee's employment by the Company without cause
pursuant to paragraph 7(b)(iv) or by the
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Employee for good reason pursuant to paragraph 7(b)(v), all outstanding unvested
options held by Employee shall become fully vested and all options will remain
exercisable for the three year period following such termination. Upon
Employee's termination of employment pursuant to paragraph 7(b)(v) without good
reason, or if Employee's employment is terminated by the Company for cause under
circumstances described in clause (A) or (B) of paragraph 7(b)(iii), all
unvested options shall immediately terminate and all vested options will remain
exercisable for the 180-day period following such termination. If Employee's
termination is by reason of death or disability pursuant to paragraph 7(b)(i) or
(ii), all unvested options shall become fully vested and all options will remain
exercisable for the one year period following such termination. Upon termination
of Employee's employment for cause under circumstances described in clause (C)
or (D) of paragraph 7(b)(iii), all outstanding options, whether or not vested,
shall immediately terminate. All exercisable options may be exercised through a
broker-assisted "cashless" exercise arrangement to be made available by the
Company. Notwithstanding the foregoing, no option may be exercisable beyond
expiration of the term of such option. Upon a Change in Control (as defined in
the Company's 1997 Long Term Incentive Plan), all outstanding unvested options
held by Employee shall become fully vested unless Section 7(g)(i) of such plan
applies. This Section 3 shall not apply to the option for 60,000 shares of stock
granted to Employee on the first anniversary of the Company's initial public
offering, as such option shall remain subject to its original terms.
4. Benefits, Executive Perquisites and Expense Reimbursement. During
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the Employment Period, Employee shall be entitled to receive additional benefits
from the Company in such form and to such extent as specified below.
(a) The Company shall provide an automobile for Executive's use, such
automobile to be of a make and model that is appropriate for Employee's position
and status with the Company.
(b) The Company shall provide Employee with other executive
perquisites as may be available to or deemed appropriate for Employee by the
Company and participation in all other Company-wide employee benefits as
available from time to time. Supplemental insurance coverages (i.e., life and
disability) shall be provided at such levels as shall be agreed between the
Company and Employee.
(c) The Company shall reimburse Employee for all business travel and
other out-of-pocket expenses reasonably incurred by Employee in the performance
of his services pursuant to this Agreement. In addition, the Company shall
reimburse Employee up to $25,000 for the reasonable legal fees and disbursements
of not more than one counsel in connection with the negotiation and execution of
this Agreement. All reimbursable expenses shall be appropriately documented in
reasonable detail by Employee upon submission of any request for reimbursement,
and in a format and manner consistent with the Company's expense reporting
policy.
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(d) The benefits, payments or reimbursements provided for in this
paragraph 4 shall be subject to informational reporting and standard withholding
deductions as required by law as determined by the Company in its reasonable
discretion.
5. Non-Competition Agreement.
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(a) Employee will not, during the period of his employment by or with
the Company, and, for a period equal to one (1) year following the termination
of his employment under this Agreement or upon its expiration pursuant to
paragraph 7(c) (or, if greater, for the period during which Employee is entitled
to continuing payment of base salary pursuant to paragraph 7(b)), for any reason
whatsoever, directly or indirectly, for himself or on behalf of or in
conjunction with any other person, company, partnership, corporation, business,
group, or other entity (each, a "Person"):
(i) engage, as an officer, director, shareholder, owner, partner,
joint venturer, or in a managerial capacity, whether as an employee,
independent contractor, consultant, advisor, or sales representative, in
any business selling any products or services in direct competition with
the Company including without limitation the importing, brokerage, shipping
or marketing of floral products, or any business engaging in the
consolidation of the floral industry, within the United States of America
or the European Community (the "Territory");
(ii) call upon any Person who is, at that time, within the
Territory, an employee of the Company for the purpose or with the intent of
enticing such employee away from or out of the employ of the Company;
(iii) call upon any Person who is, at that time, or has been,
within one year prior to that time, a customer of the Company within the
Territory for the purpose of soliciting or selling products or services in
direct competition with the Company within the Territory; or
(iv) on Employee's own behalf or on behalf of any competitor,
call upon any Person who during the one-year period prior to that time was
either called upon by the Company as a prospective acquisition candidate or
was the subject of an acquisition analysis conducted by the Company.
No provision of this paragraph 5(a) shall be deemed to prohibit Employee from
acquiring as an investment not more than one percent (1%) of the capital stock
of a competing business, whose stock is traded on a national securities exchange
or on an over-the-counter market.
(b) Because of the difficulty of measuring economic losses to the
Company as a result of a breach of the foregoing covenant, and because of the
immediate and irreparable damage that could be caused to the Company for which
it would have no other adequate remedy, Employee agrees that the foregoing
covenant, in addition to and not in limitation of any other rights, remedies or
damages available to the Company at law, in equity or under this Agreement,
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may be enforced by the Company in the event of the breach or threatened breach
by Employee, by injunctions and/or restraining orders.
(c) It is agreed by the parties that the covenants contained in
paragraphs 5(a) and 5(b) hereof impose a reasonable restraint on Employee in
light of the activities and business of the Company (including the Company's
affiliates) on the date of the execution of this Agreement and the current plans
of the Company (including the Company's affiliates).
(d) The covenants in this paragraph 5 are severable and separate, and
the unenforceability of any specific covenant shall not affect the provisions of
any other covenant. Moreover, in the event any court of competent jurisdiction
shall determine that the scope, time or territorial restrictions set forth
herein are unreasonable, then it is the intention of the parties that such
restrictions be enforced to the fullest extent that such court deems reasonable,
and the Agreement shall thereby be reformed to reflect the same.
(e) All of the covenants in this paragraph 5 shall be construed as an
agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Employee against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of such covenants. It is specifically
agreed that the period stated in paragraph 5(a) hereof, during which the
agreements and covenants of Employee made in this paragraph 5 shall be
effective, shall be computed by excluding from such computation any time during
which Employee is in violation of any provision of this paragraph 5.
(f) Notwithstanding any of the foregoing, if any applicable law,
judicial ruling or order shall reduce the time period during which Employee
shall be prohibited from engaging in any competitive activity described in
paragraph 5(a) hereof, the period of time for which Employee shall be prohibited
pursuant to paragraph 5(a) hereof shall be the maximum time permitted by law.
However, in the event that the time period specified by paragraph 5(a) hereof
shall be so reduced, then, notwithstanding the provisions of paragraph 7(b)(iv)
hereof, Employee shall be entitled to receive from the Company his base salary
at the rate then in effect solely for the time period during which the
provisions of paragraph 5(a) hereof shall be enforceable under the provisions of
such applicable law, ruling or order.
(g) For purposes of this Section 5, references to "the Company" shall
mean U.S.A. Floral Products, Inc., together with its subsidiaries and
affiliates.
(h) Notwithstanding anything contained herein to the contrary, upon
Employee's termination of employment for any reason that occurs within a two
year period following a Change in Control (as defined in the Company's 1997 Long
Term Incentive Plan), this Section 5 shall cease to apply.
6. Place of Performance. During the Term, Employee's principal offices
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shall be located in the greater Washington, D.C. metropolitan area.
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7. Term; Termination; Rights on Termination.
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(a) This Agreement shall have a term of three years, commencing as of
the date hereof and ending on the third anniversary of the date hereof. Such
three year period is referred to herein as the "Term", and the period during the
Term, prior to termination of the Employee's employment pursuant to paragraph
7(b), is referred to herein as the "Employment Period".
(b) The Employee's employment hereunder may be terminated during the
Term in any one of the followings ways:
(i) Death. Upon death of Employee, no severance compensation due
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to Employee's estate.
(ii Disability. If, as a result of incapacity due to physical
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or mental illness or injury, Employee shall have been absent from his full-
time duties hereunder for four (4) consecutive months, then thirty (30)
days after written notice to Employee (which notice may occur before or
after the end of such four (4) month period, but which shall not be
effective earlier than the last day of such four (4) month period), the
Company may terminate Employee's employment hereunder, provided that
Employee is unable to resume his full-time duties at the conclusion of such
notice period. Also, Employee may terminate his employment hereunder if
his health should become impaired to an extent that makes the continued
performance of his duties hereunder hazardous to his physical or mental
health or his life, provided that Employee shall have furnished the Company
with a written statement from a qualified doctor to such effect, and
provided, further, that, at the Company's request made within thirty (30)
days of the date of such written statement, Employee shall submit to an
examination by a doctor selected by the Company who is reasonably
acceptable to Employee or Employee's doctor and such doctor shall have
concurred in the conclusion of Employee's doctor. In the event the
Employee's employment is terminated as a result of Employee's disability,
Employee shall receive from the Company the base salary, at the rate then
in effect, and the additional benefits and requirements described in
paragraph 4, for whatever time period is remaining under the Term, payable
over the remaining period of the Term and otherwise in accordance with the
provisions of this Agreement.
(ii Cause. Employee's employment shall terminate thirty (30)
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days after written notice to Employee specifying "cause" therefor. For
purposes of this Agreement, the term "cause" shall mean and refer to: (A)
Employee's willful and material breach of this Agreement (continuing for
thirty (30) days after receipt of written notice of need to cure); (B)
Employee's gross negligence in the performance or intentional
nonperformance (continuing for thirty (30) days after receipt of written
notice of need to cure) of any of Employee's material duties and
responsibilities hereunder; (C) Employee's willful dishonesty, fraud or
misconduct with respect to the business or affairs of the Company which
materially and adversely affects the operations or reputation of the
Company; (D) Employee's conviction of a felony or other crime involving
moral
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turpitude; or (E) chronic alcohol or illegal drug abuse by Employee.
For purposes of this definition of "cause," no act, or failure to act, on
Employees's part shall be deemed "willful" unless done, or omitted to be
done, by Employee not in good faith and without reasonable belief that
Employee's act, or failure to act, was in the best interest of the Company.
In the event of a termination for cause, as enumerated above, Employee
shall have no right to any severance compensation.
(iv Without Cause. The Company may, without cause, terminate
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the Employee's employment, effective thirty (30) days after written notice
is provided to Employee. Should Employee be terminated by the Company
without cause, subject to paragraph 5(f) hereof, Employee shall receive
from the Company the base salary, at the rate then in effect at the time of
such termination, and coverage under Company -provided insured welfare
arrangements on the same basis as such benefits were provided at the time
of such termination for the period remaining in the Term or one (1) year,
whichever is greater; provided, however, should such termination occur
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within a two year period following a Change in Control (as defined in the
Company's 1997 Long Term Incentive Plan as in effect on the date hereof,
unless any change in the definition is more advantageous to Employee), in
lieu of the amount to be provided above, the Employee shall receive, within
five (5) days of such termination, a lump sum payment equal to three (3)
times Employee's annual base salary in effect at the time of such
termination or at the time of the Change in Control, whichever is greater,
plus coverage under Company -provided insured welfare arrangements on the
same basis as such benefits were provided at the time of such termination
for three (3) years.
(v) Resignation. The Employee may resign at any time. If
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Employee resigns or otherwise terminates his employment without "good
reason"pursuant to this paragraph 7(b)(v), Employee shall receive no
severance compensation. If the Employee's resignation or other termination
is for good reason, then Employee shall be entitled to the amounts and
benefits as if his employment were terminated without cause pursuant to
paragraph 7(b)(iv) (including, if Employee terminates his employment for
good reason within a two (2) year period following a Change in Control, a
lump sum payment equal to three (3) times Employee's annual base salary in
effect at the time of such termination or at the time of the Change in
Control, whichever is greater, plus coverage under Company-provided insured
welfare arrangements on the same basis as such benefits were provided at
the time of such termination for three (3) years). For purposes of this
Agreement, good reason shall mean and refer to the Company's material
breach of any provision of this Agreement (continuing for thirty (30) days
after receipt of written notice of need to cure) including, but not by way
of limitation, a diminution in, or assignment to Employee of any duties,
responsibilities or reporting relationship that are inconsistent with the
nature or status of Employee's duties, responsibilities or functions from
those in effect at the commencement of the Term, which shall include his
status as the Chairman of the Board.
(c) If, upon expiration of the Term, the Company terminates Employee's
employment, or Employee resigns because the Company fails to offer Employee
continued employment on at least as favorable terms and conditions as were in
effect immediately prior to
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such expiration (without regard to the length of the original term), then
Employee shall be entitled to the amounts and benefits as if his employment were
terminated without cause immediately prior to the expiration of the Term
pursuant to paragraph 7(b)(iv).
(d) Upon termination of the Employee's employment for any reason
provided above, Employee shall be entitled to receive all compensation earned
and all benefits and reimbursements due through the effective date of
termination. Additional compensation subsequent to termination, if any, will be
due and payable to Employee only to the extent and in the manner expressly
provided above. All other rights and obligations of the Company and Employee
under this Agreement shall cease as of the effective date of termination, except
that the Company's obligations under paragraphs 7 and 10 herein and Employee's
obligations under paragraphs 5, 7, 8, 9 and 11 herein shall survive such
termination in accordance with their terms.
(e) The Company agrees that, if the Executive's employment by the
Company is terminated during the Term, the Executive is not required to seek
other employment, or to attempt in any way to reduce any amounts payable to the
Executive by the Company pursuant to paragraph 7(b). Further, the amount of any
payment or benefit provided for in such paragraph 7(b) shall not be reduced by
any compensation or benefits earned by the Executive as the result of employment
by another employer, by retirement benefits, by offset against any amount
claimed to be owed by the Executive to the Company, for any breach or alleged
breach of any covenant contained in this or any other agreement, or otherwise.
Notwithstanding the foregoing, continued payments and benefits pursuant to
paragraph 7(b)(iv) shall be subject to Employee's compliance with paragraph
5(a).
8. Return of Company Property. All records, designs, patents, business
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plans, financial statements, manuals, memoranda, lists and other property
delivered to or compiled by Employee by or on behalf of the Company (including
the respective affiliates thereof) or their representatives, vendors or
customers which pertain to the business of the Company (including the respective
affiliates thereof) shall be and remain the property of the Company, and be
subject at all times to its discretion and control. Likewise, all
correspondence, reports, records, charts, advertising materials and other
similar data pertaining to the business, activities or future plans of the
Company which is collected by Employee or otherwise in Employee's possession or
control shall be delivered promptly to the Company, without request by the
Company, upon termination of Employee's employment hereunder.
9. Inventions. Employee shall disclose promptly to the Company any and
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all significant conceptions and ideas for inventions, improvements and valuable
discoveries, whether patentable or not, which are conceived or made by Employee,
solely or jointly with another, during the period of employment, and which are
directly related to the business or activities of the Company and which are
conceived as a result of his employment by the Company. Employee hereby assigns
and agrees to assign all of his interests therein to the Company or its nominee.
Whenever requested to do so by the Company, Employee shall execute any and all
applications, assignments or other instruments that the Company shall deem
necessary to apply for and obtain Letters Patent of the United States or any
foreign country or to otherwise protect the Company's interest therein.
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10. Trade Secrets. Employee is employed hereunder by the Company in a
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confidential relationship wherein Employee, in the course of his employment with
the Company, has and will continue to become familiar with and aware of
information as to the Company and its affiliates, customers, relationships or
agreements with their respective vendors or customers, specific manner of doing
business, including the processes, techniques and trade secrets utilized by the
Company and its affiliates, and future plans with respect thereto, all of which
has been and will be established and maintained at great expense to the Company
and its affiliates; any and all of such information are trade secrets and
constitute the valuable goodwill of the Company and its affiliates. Employee
agrees that he will not, during or after the Term, disclose any of such
information and/or trade secrets, whether in existence or proposed, to any
person, firm, partnership, corporation or business for any reason or purpose
whatsoever.
11. Indemnification. In the event Employee is made a party to any
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threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by the Company
against Employee), by reason of the fact that he is or was performing services
under this Agreement, then the Company shall indemnify Employee against all
expenses (including reasonable attorneys' fees), judgments, fines and amounts
paid in settlement, as actually and reasonably incurred by Employee in
connection therewith. In the event that both Employee and the Company are made
a party to the same third-party action, complaint, suit or proceeding, the
Company agrees to engage competent legal representation, and Employee agrees to
use the same representation, provided that if counsel selected by the Company
shall have a conflict of interest that prevents such counsel from representing
Employee, Employee may engage separate counsel and the Company shall pay all
attorneys' fees of such separate counsel. Further, while Employee is expected
at all times to use his best efforts to faithfully discharge his duties under
this Agreement, Employee cannot be held liable to the Company for errors or
omissions made in good faith where Employee has not exhibited gross, willful or
wanton negligence or misconduct or performed criminal or fraudulent acts which
materially damage the business of the Company.
12. No Prior Agreements. Employee hereby represents and warrants to the
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Company that the execution of this Agreement or the Prior Agreement by Employee
and his employment by the Company and the performance of his duties hereunder or
thereunder will not violate or be a breach of any written agreement with a
former employer, client or any other person or entity. Further, Employee agrees
to indemnify the Company for any claim, including, but not limited to,
attorneys' fees and expenses of investigation, by any such third party that such
third party may now have or may hereafter come to have against the Company based
upon or arising out of any written noncompetition agreement, invention or
secrecy agreement between Employee and such third party which was in existence
as of the date of this Agreement or the Prior Agreement. The Company agrees to
indemnify Employee for the cost and expense of any claim, including, but not
limited to, attorneys' fees and expenses of investigation, brought by Employee's
former employer against Employee based upon or arising out of the Company's
employment of Employee and not otherwise related, directly or indirectly, to any
written agreement between Employee and his former employer.
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13. Assignment; Binding Effect. Employee understands that he has been
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selected for employment by the Company on the basis of his personal
qualifications, experience and skills. Employee agrees, therefore, that he
cannot assign all or any portion of his performance under this Agreement.
Subject to the preceding two (2) sentences, this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties hereto and their
respective heirs, legal representatives, successors and assigns.
14. Complete Agreement. This Agreement is not a promise of future
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employment. Employee is and shall be an employee at-will and the Company may
terminate this Agreement at any time, with or without cause, subject to the
Company's obligations under paragraph 7 above. Employee has no oral
representations, understandings or agreements with the Company or any of its
officers or representatives covering the same subject matter as this Agreement.
This written Agreement may not be later modified except by a further writing
signed by a duly authorized officer of the Company and Employee, and no term of
this Agreement may be waived except by writing signed by the party waiving the
benefit of such term.
15. Notice. Whenever any notice is required hereunder, it shall be given
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in writing addressed as follows:
To the Company: U.S.A. Floral Products, Inc.
0000 Xxxxxx Xxxxxxxxx Xxxxxx, X.X.
Suite 600 West
Washington, D.C. 20007
Attn: Chief Financial Officer
With a copy to: Xxxxxx, Xxxxx & Xxxxxxx LLP
One Oxford Centre
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
To Employee: Xxxxxx Xxxxxxx
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
With a copy to: Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxx
Notice shall be deemed given and effective three (3) days after the deposit in
the U.S. mail of a writing addressed as above and sent first-class mail,
certified, return-receipt requested, or when
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actually received. Either party may change the address for notice by notifying
the other party of such change in accordance with this paragraph 14.
16. Severability; Headings. If any portion of this Agreement is held
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invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative. The
paragraph headings herein are for reference purposes only and are not intended
in any way to describe, interpret, define or limit the extent or intent of the
Agreement or of any part hereof.
17. Arbitration. Except to the extent necessary for the Company to avail
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itself of its remedies pursuant to paragraph 5, any unresolved dispute or
controversy arising under or in connection with this Agreement shall be settled
exclusively by arbitration, conducted in accordance with the rules of the
American Arbitration Association then in effect. The arbitrators shall not have
the authority to add to, detract from, or modify any provision hereof, nor to
award punitive damages to any injured party. The arbitrators shall have the
authority to order back-pay, severance compensation, vesting of options (or cash
compensation in lieu of vesting of options), reimbursement of costs, including
those incurred to enforce this Agreement, and interest thereon, in the event the
arbitrators determine that Employee was terminated without disability or cause,
as defined in paragraphs 7(b)(ii) and 7(b)(iii), respectively, or Employee
resigned for good reason as defined in paragraph 7(b)(v), or that the Company
has otherwise materially breached this Agreement. A decision by a majority of
the arbitration panel shall be final and binding. Judgment may be entered on the
arbitrators' award in any court having jurisdiction. The direct expense of any
arbitration proceeding shall be borne by the Company. The arbitration
proceeding shall be held in the city where the Company's corporate headquarters
is located.
18. Governing Law. This Agreement shall in all respects be governed by
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and construed in accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the Company and Employee have executed this Agreement
as of the date first above written.
ATTEST: COMPANY:
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U.S.A. FLORAL PRODUCTS, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
_____________________________ _____________________________
Xxxxxx X. Xxxxxxx
By: /s/ Xxxxxxxx X. Xxxxxxx
_____________________________ _____________________________
Xxxxxxxx X. Xxxxxxx
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WITNESS: EMPLOYEE:
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/s/ XXXXXX XXXXXXX
_____________________________ ________________________________(SEAL)
XXXXXX XXXXXXX
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