Exhibit 10.10
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as of
the 1st day of June 1997 (the "Effective Date"), between Pelican Properties
International, Corp., a Florida corporation whose address is Xxxxx 0, Xxx 000,
Xxx Xxxx Xxx, XX 00000 (the "Company"), and Xxxx Xxxxxxx (the "Employee").
WHEREAS, the Company is presently, through its majority owned subsidiary,
the owner and operator of a recreational vehicle and camping resort in Monroe
County, Florida and intends to acquire additional existing businesses, whether
in the form of asset purchases, stock purchases, mergers, consolidations, joint
ventures, strategic alliances or otherwise (the "Business"); and
WHEREAS, the Company intends to establish a valuable reputation and
goodwill in its business, with expertise in all aspects of the Business; and
WHEREAS, the Employee is desirous of being employed by the Company, and the
Company has agreed to hire the Employee upon certain terms and conditions, one
of which is the execution of this Agreement by Employee; and
WHEREAS, the Employee, by virtue of the Employee's employment by the
Company shall become familiar with and possessed with the manner, methods, trade
secrets and other confidential information pertaining to the Company's Business,
including the Company's client base;
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Company and the Employee do hereby agree as follows:
1. Engagement. The Company hereby employs the Employee as the President of
the Company, and the Employee hereby accepts such employment, upon the terms and
conditions hereinafter set forth.
2. Authority and Power During Employment Period. The duties of the
Employee shall be subject to the direction of the Board of Directors of the
Company, and the Employee shall perform all duties as may be mutually agreed
upon between the Employee and the Company. The Employee shall devote full
attention and render exclusive, full time services to the Company, and shall be
employed solely by the Company according to the terms of this Agreement.
3. Term. Unless terminated sooner pursuant to Section 15 of this Agreement,
the Term of employment will commence on the Effective Date and continue for a
period of one (1) year thereafter. This Agreement may be automatically renewed
for up to one (1) additional one (1) year periods upon mutual agreement between
the parties (the "Renewal Term"), unless terminated pursuant to Section 15 of
this Agreement. The term of the provisions of Sections 5 and 6 shall be as
specifically set forth in this Agreement.
4. Compensation and Benefits.
a. Salary. The Employee shall be paid a base salary for the first year of
the Term (as defined in Section 3) as set forth in Section 4(b) herein; base
salary for any Renewal Term (as defined in Section 3) shall be mutually agreed
to by the parties hereto.
b. Stock. As additional compensation, for all services rendered by the
Employee pursuant to the terms of this Agreement and in consideration of the
continuing services rendered by the Employee pursuant to the terms of this
Agreement, the Company shall issue an aggregate of Eighty Thousand (80,000)
shares of Common Stock of the Company to the Employee as follows: Twenty
Thousand (20,000) shares to be issued on the last day of the completion of the
first quarter following the signing of this Agreement, Twenty Thousand (20,000)
shares to be issued at the completion of the second quarter following the
signing of this Agreement, Twenty Thousand (20,000) shares to be issued on the
last day of the completion of the third quarter following the signing of this
Agreement, and Twenty Thousand (20,000) to be issued on the last day of the
completion of the final quarter following the signing of this Agreement.
c. Employee Benefits. The Employee shall be entitled to participate in all
benefit programs of the Company currently existing or hereafter made available
to other salaried executive officers, including, but not limited to, pension,
profit sharing and any other retirement plans, group life insurance,
hospitalization, surgical, dental and major medical coverage, sick leave, salary
continuation, vacation and holidays, long-term disability, and other fringe
benefits.
d. Business Expense Reimbursement. During the Term or any Renewal Term of
employment, the Employee shall be entitled to receive proper reimbursement for
all reasonable, out-of-pocket expenses incurred by the Employee (in accordance
with the policies and procedures established by the Company for its executive
officers) in performing services hereunder, provided the Employee properly
accounts therefor and provided further that any expense in excess of $100 or in
the aggregate of $500 must be approved in advance by the Board of Directors.
5. Covenant Not to Compete. The Employee acknowledges and recognizes the
highly competitive nature of the Company's business and the goodwill, continued
patronage, and specifically the names and addresses of the Company's Clients (as
hereinafter defined) constitute a substantial asset of the Company having been
acquired through considerable time, money and effort. Accordingly, in
consideration of continued employment and compensation by the Company, the
Employee agrees to the following:
a. That during the Restricted Period (as defined herein) and within the
Restricted Area (as defined herein), the Employee will not, individually or in
conjunction with others, directly or indirectly, engage in any Business
Activities (as hereinafter
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defined) other than on behalf of the Company and as agreed by the Company and
the Employee, whether as an officer, director, proprietor, employer, partner,
independent contractor, investor, stockholder (other than as a holder of less
than 1% of the outstanding capital stock of a publicly traded corporation),
consultant, advisor, agent or otherwise. Except that during the term of
Employee's employment with the Company, the foregoing limitations as to
Restricted Area shall not be applicable.
b. That during the Restricted Period and within the Restricted Area (as
defined herein), the Employee will not, indirectly or directly, compete with the
Company by soliciting, inducing or influencing any of the Company's Clients
which have a business relationship with the Company at any time during the
Restricted Period to discontinue or reduce the extent of such relationship with
the Company. Except that during the term of Employee's employment with the
Company, the foregoing limitations as to Restricted Area shall not be
applicable.
c. During the term of the Employee's employment with the Company and for
any time thereafter, the Employee will not (a) directly or indirectly recruit,
solicit or otherwise influence any employee or agent of the Company to
discontinue such employment or agency relationship with the Company, or (b)
employ or seek to employ, or cause or permit any business which competes
directly or indirectly with the Business Activities of Company (the "Competitive
Business") to employ or seek to employ for any Competitive Business any person
who is then (or was at any time within six (6) months prior to the date Employee
or the Competitive Business employs or seeks to employ such person) employed by
the Company.
d. During the term of the Employee's employment with the Company and for
any time thereafter, the Employee will not interfere with, disrupt or attempt to
disrupt any past, present or prospective relationship, contractual or otherwise,
between the Company and any Company's client, employee, agent, vendor, supplier
or customer.
6. Non-Disclosure of Confidential Information.
a. The Employee acknowledges that the Company's trade secrets, private or
secret processes, methods and ideas, as they exist from time to time, customer
lists and information concerning the Company's products, services, business
records and plans, inventions, product design information, price structure,
discounts, costs, computer programs and listings, source code and/or subject
code, copyright, trademark, proprietary information, formulae, protocols, forms,
procedures, training methods, development, technical information, marketing
activities and procedures, method for operating of the Company's Business,
credit and financial data concerning the Company and the Company's Clients and
Client Lists, which Client Lists shall not only mean one or more of the names
and addresses of the Clients of the Company but it shall also encompass any and
all information whatsoever regarding them, including their needs, and marketing
and advertising practices and plans and information which is embodied in written
or otherwise recorded form, but it shall also include information
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which is mental, not physical (collectively, the "Confidential Information") as
valuable, special and unique assets of the Company, access to and knowledge of
which are essential to the performance of the Employee hereunder. In light of
the highly competitive nature of the industry in which the Company's business is
conducted, the Employee agrees that all Confidential Information, heretofore or
in the future obtained by the Employee as a result of the Employee's association
with the Company, shall be considered confidential.
b. Excluded from the Confidential Information, and therefore not subject to
the provisions of this Agreement, shall be any information which:
(1) At the time of disclosure, is in the public domain as evidenced by
printed publications;
(2) After the disclosure, enters the public domain by way of printed
publication through no fault of the Employee or those in privity with it;
(3) Employee can show by written documentation was in its possession
at the time of disclosure and which was not acquired directly or indirectly
from the Company; or
(4) Employee can show by written documentation was acquired, after
disclosure, from a third party who did not receive it from the Company, and
who had the right to disclose the information without any obligation to
hold such information confidential.
c. The Employee acknowledges that, as between the Company and the Employee,
the Confidential Information and any and all rights and privileges provided
under the trademark, copyright, trade secret and other laws of the United
States, the individual states thereof, and jurisdictions foreign thereto, and
the goodwill associated therewith, are and at all times will be the property of
the Company.
d. Employee agrees that it shall:
(1) Hold in confidence and not disclose or make available to any third
party any such Confidential Information unless so authorized in writing by
the Company;
(2) Exercise all reasonable efforts to prevent third parties from
gaining access to the Confidential Information;
(3) Not use, directly or indirectly, the Confidential Information in
any respect of its business, except as necessary to evaluate the
information;
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(4) Restrict the disclosure or availability of the Confidential
Information to those of Employee's employees who have read and understand
this Agreement and who have a need to know the information in order to
achieve the purposes of this Agreement;
(5) Not copy or modify any Confidential Information without prior
written consent of the Company.
(6) Take such other protective measures as may be reasonably necessary
to preserve the confidentiality of the Confidential Information; and
(7) Relinquish and require all of its employees to relinquish all
rights it and its employees may have in any matter, such as drawings,
documents, models, samples, photographs, patterns, templates, molds, tools
or prototypes, which may contain, embody or make use of the Confidential
Information; promptly deliver to the Company any such matter as the Company
may direct at any time; and not retain any copies or other reproductions
thereof.
e. Employee further agrees:
(1) That it shall promptly disclose in writing to the Company all
ideas, inventions, improvements and discoveries which may be conceived,
made or acquired by Employee or its employees as the direct or indirect
result of the disclosure by the Company of the Confidential Information to
Employee;
(2) That all such ideas, inventions, improvements and discoveries
conceived, made or acquired by Employee, alone or with the assistance of
others, relating to the Confidential Information, shall be the property of
the Company and shall be treated as Confidential Information in accordance
with the provisions hereof and that Employee shall not acquire any
intellectual property rights under this Agreement except the limited right
to use set forth in this Agreement.
(3) That Employee and its employees shall assist in the preparation
and execution of all applications, assignments and other documents which
the Company may deem necessary to obtain patents, copyrights and the like
in the United States and in jurisdictions foreign thereto, and to otherwise
protect the Company.
f. Upon written request of the Company, Employee shall return to the
Company all written materials containing the Confidential Information. Employee
shall also deliver to the Company written statements signed by the Employee
certifying all materials have been returned within five (5) days of receipt of
the request.
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7. Company's Clients. The "Company's Clients" shall be deemed to be any
persons, partnerships, corporations, professional associations or other
organizations for whom the Company has performed Business Activities.
8. Restrictive Period. The "Restrictive Period" shall be deemed to be
during the Employee's employment with the Company and for a period of twelve
(12) months following termination of the Employee's employ, regardless of the
reason for termination.
9. Restricted Area. The Restricted Area shall be deemed to mean within
Monroe County, Florida and any other county in any other state which the Company
shall conduct its Business.
10. Business Activities. "Business Activities" shall be deemed to include
any activities which are included in the Company's Business now or during the
effective period of this Agreement.
11. Covenants as Essential Elements of this Agreement; Survival of
Covenants.
a. It is understood by and between the parties hereto that the foregoing
covenants by Employee contained in Sections 5 or 6 of this Agreement shall be
construed to be agreements independent of any other element of the Employee's
employment with the Company. The existence of any other claim or cause of
action, whether predicated on any other provision in this Agreement, or
otherwise, as a result of the relationship between the parties shall not
constitute a defense to the enforcement of the covenants in this Agreement
against the Employee.
b. The covenants by Employee contained in Sections 5 and 6 shall survive
the expiration of this Agreement if the Employee continues to work for the
Company, in any manner, without renewing this Agreement. The Employee further
agrees that the covenants set forth in Section 5 and 6 of this Agreement shall
continue to be in effect following the expiration or termination of the
Employee's employment with the Company.
12. Remedies.
a. The Employee acknowledges and agrees that the Company's remedy at law
for a breach or threatened breach of any of the provisions of Sections 5 or 6
herein would be inadequate and the breach shall be per se deemed as causing
irreparable harm to the Company. In recognition of this fact, in the event of a
breach by the Employee of any of the provisions of Sections 5 or 6, the Employee
agrees that, in addition to any remedy at law available to the Company,
including, but not limited to monetary damages, the Company, without posting any
bond, shall be entitled to obtain, and the Employee agrees not to oppose the
Company's request for equitable relief in the form of specific performance,
temporary restraining order, temporary or permanent injunction or any other
equitable remedy which may then be available to the Company.
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b. The Employee acknowledges that the granting of a temporary injunction,
temporary restraining order or permanent injunction merely prohibiting the use
of Confidential Information would not be an adequate remedy upon breach or
threatened breach of Sections 5 or 6 and consequently agrees, upon proof of any
such breach, to the granting of injunctive relief prohibiting any form of
competition with the Company. Nothing herein contained shall be construed as
prohibiting the Company from pursuing any other remedies available to it for
such breach or threatened breach.
c. In the event that the Employee shall be in violation of the
aforementioned restrictive covenants as set forth in Sections 5 and 6, then the
time limitation during which breach or breaches should occur, and in the event
the Company should be required to seek relief from such breach in any court or
other tribunal, then the covenant shall be extended for a period of time equal
to the pendency of such proceedings, including appeal.
13. Attorneys' Fees. The Employee agrees that in the event that the Company
is required to engage an attorney to enforce the terms of the covenants in
Sections 5 or 6 of this Agreement, the Employee shall pay all costs and expenses
of that attorney or firm, whether or not a complaint or suit is filed with any
court of competent jurisdiction.
14. Effect on Prior Agreements. This Agreement supersedes any and all prior
or written agreement in their entirety between the Company and the Employee,
which shall be void and of no further force and effect after the date of this
Agreement.
15. Termination.
a. Termination Without Cause by Either Party. The Company and the Employee
may terminate this Agreement without cause upon giving thirty (30) days' prior
written notice. During such thirty (30) day period, the Employee shall continue
to perform the Employee's duties pursuant to this Agreement, and the Company
shall continue to compensate the Employee in accordance with this Agreement.
b. Mutual Agreement. The Company and the Employee may terminate this
Agreement by mutual agreement of the parties hereto at any time.
c. Immediate Termination. This Agreement may be terminated immediately by
the Company upon the occurrence of any of the following events:
(1) The death of the Employee;
(2) The Employee has a guardian of the person or estate appointed by a
court of competent jurisdiction;
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(3) The Employee is disabled so as to be unable to perform duties
required under this Agreement for a period of ninety (90) consecutive days
or ninety (90) days in any one-hundred eighty (180) day period; or
(4) The willful engagement in misconduct that is materially injurious
to the Company, monetarily or otherwise; or
(5) For "Cause," as defined below.
d. "Cause" means (i) committing or participating in an injurious act of
fraud, gross neglect, misrepresentation, embezzlement or dishonesty against the
Company; (ii) committing or participating in any other injurious act or omission
wantonly, willfully, recklessly or in a manner which was grossly negligent
against the Company, monetarily or otherwise; (iii) engaging in a criminal
enterprise involving moral turpitude; (iv) conviction of a felony under the laws
of the United States or any state thereof; (v) if applicable, loss of any state
or federal license required for the Employee to perform the Employee's material
duties or responsibilities for the Company; or (vi) any assignment of this
Agreement in violation of Section 20 of this Agreement.
Notwithstanding anything else contained in this Agreement, this Agreement
will not be deemed to have been terminated for Cause unless and until there
shall have been delivered to the Employee a notice of termination stating that
the Employee committed one of the types of conduct set forth in the definition
of Cause contained in this Agreement and specifying the particulars thereof.
e. Termination After Failure to Cure Breach. If the Employee commits a
material breach of any provisions of this Agreement, the Company may terminate
the Agreement at any time, if after providing written notice to the Employee of
the alleged breach or failure, the breach or failure remains uncured for a
period of ten (10) days after receipt of such notice.
16. Notices. Any notice required or permitted to be given under the terms
of this Agreement shall be sufficient if in writing and if sent postage prepaid
by registered or certified mail, return receipt requested; by overnight
delivery; by courier; or by confirmed telecopy, in the case of the Employee to
the Employee's last place of business or residence as shown on the records of
the Company, or in the case of the Company to its principal office as set forth
in the introductory paragraph, or such other place as it may designate.
17. Waiver. Unless agreed in writing, the failure of either party, at any
time, to require performance by the other of any provisions hereunder shall not
affect its right thereafter to enforce the same, nor shall a waiver by either
party of any breach of any provision hereof be taken or held to be a waiver of
any other preceding or succeeding breach of any term or provision of this
Agreement. No extension of time for the
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performance of any obligation or act shall be deemed to be an extension of time
for the performance of any other obligation or act hereunder.
18. Complete Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the contents hereof and supersedes
all prior agreements and understandings between the parties with respect to such
matters, whether written or oral. Neither this Agreement nor any term or
provision hereof may be changed, waived, discharged or amended in any manner
other than by an instrument in writing, signed by the party against which the
enforcement of the change, waiver, discharge or amendment is sought.
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute but one agreement.
20. Binding Effect/Assignment. This Agreement shall be binding upon the
parties hereto, their heirs, legal representatives, successors and assigns. This
Agreement shall not be assignable by the Employee but shall be assignable by the
Company in connection with the sale, transfer or other disposition of its
business or to any of the Company's affiliates controlled by or under common
control with the Company.
21. Governing Law. This Agreement shall become valid when executed and
accepted by Company. The parties agree that it shall be deemed made and entered
into in the State of Florida and shall be governed and construed under and in
accordance with the laws of the State of Florida. Anything in this Agreement to
the contrary notwithstanding, the Employee shall conduct the Employee's business
in a lawful manner and faithfully comply with applicable laws or regulations of
the state, city or other political subdivision in which the Employee is located.
22. Headings. The headings of the sections are for convenience only and
shall not control or affect the meaning or construction or limit the scope or
intent of any of the provisions of this Agreement.
23. Survival. Any termination of this Agreement shall not, however, affect
the ongoing provisions of this Agreement which shall survive such termination in
accordance with their terms.
24. Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein. If any court
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determines that any provision of Section 5 or 6 hereof is unenforceable because
of the duration or scope of such provision, such court shall have the power to
reduce the scope or duration of such provision, as the case may be, and, in its
reduced form, such provision shall then be enforceable.
25. Enforcement. Should it become necessary for any party to institute
legal action to enforce the terms and conditions of this Agreement, the
successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs.
26. Venue. Company and Employee acknowledge and agree that the U.S.
District for the Southern District of Florida, or if such court lacks
jurisdiction, the 11th Judicial Circuit (or its successor) in and for Dade
County, Florida, shall be the venue and exclusive proper forum in which to
adjudicate any case or controversy arising either, directly or indirectly, under
or in connection with this Agreement and the parties further agree that, in the
event of litigation arising out of or in connection with this Agreement in these
courts, they will not contest or challenge the jurisdiction or venue of these
courts.
27. Construction. This Agreement shall be construed within the fair meaning
of each of its terms and not against the party drafting the document.
THE PARTIES TO THIS AGREEMENT HAVE READ THIS AGREEMENT, UNDERSTAND ITS TERMS AND
CONDITIONS, HAVE HAD THE OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL OF
THEIR OWN CHOICE AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
IN WITNESS WHEREOF, the Effective Date shall be the date the Agreement has been
accepted by the Company at its principal offices in Dade County, Florida.
WITNESS: THE COMPANY
Pelican Properties International, Corp.
_______________________________
By: /s/ C. Xxxx Xxxxx, Xx.
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C. Xxxx Xxxxx, Xx., Chairman of the Board
THE EMPLOYEE
_______________________________
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
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EXHIBIT A
