Exhibit 10.11
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
this 2nd day of February, 1999, by and between SMARTGATE, L.C., a Florida
corporation, (the "Company") and XXXXX X. XXXXXXXXX ("Employee").
R E C I T A L S
WHEREAS, the Company is in the business of developing, manufacturing and
marketing safety systems for commercial overhead doors, parking, swinging, and
sliding gates based on proprietary technology ("Business"); and
WHEREAS, Employee wishes to be employed by the Company, and the Company
wishes to employ the employee; and
WHEREAS, the Company and the Employee are desirous of setting forth in
this definitive Employment Agreement their respective rights and obligations in
respect to Employee's employment with the Company.
NOW, THEREFORE, in consideration of Employee's employment or continued
employment by the Company and in consideration of the mutual promises in this
Agreement, and for additional good and valuable consideration, the receipt and
sufficiency of which is acknowledged by the parties hereto, the Company and the
Employee agree as follows:
1. EMPLOYMENT AND TERM. On the terms and subject to the conditions of this
Agreement, the Company agrees to employ the Employee and the Employee accepts
such employment. Employee's employment under this Agreement shall commence on
the date of completion of funding as described in Exhibit "B" hereof, which is
attached hereto, incorporated herein and made a part hereof, and shall continue
in effect for a period of three years from the date thereof and it shall
terminate at the end of said three year period ("Termination Date"), unless
earlier terminated pursuant to Paragraph 6 hereinbelow.
2. DUTIES. The Employee is employed by the Company to perform the duties
specified from time to time by the President and as set forth on Exhibit "A"
which is attached hereto, incorporated herein and made a part hereof ("Duties").
3. COMPENSATION. As compensation for Employee performing the Duties, the
Company shall pay Employee the compensation, as set forth on Exhibit "B"
("Compensation").
4. VACATIONS. Employee shall be entitled each year to a vacation as
provided in Exhibit "B", during which time Employee's Compensation shall be
paid in full.
5. FRINGE BENEFITS AND REIMBURSEMENT OF EXPENSES.
a. Employee shall be entitled to participate in any group plans or
programs maintained by the Company, if any, such as health insurance or other
related benefits as may be in effect from time to time and offered to the other
Employees of the Company ("Benefits").
b. The Company will reimburse Employee for Employee's out-of-pocket
expenses for entertainment, travel, and similar expenses reasonably incurred by
Employee in the performance of Employee's duties hereunder ("Expenses") provided
such Expenses are consistent with policy and budgets established by the Board of
Directors from time to time. The Employee shall provide an itemized account of
such Expenses, itemizing such Expenses in reasonable detail, and reimbursement
for Expenses approved by the Board of Directors or its designated officer shall
be made in a reasonable time following the Employee's delivery of the itemized
account.
6. TERMINATION OF EMPLOYMENT.
6.1 Prior to the Termination Date, this Agreement and all the rights
and obligations of the parties hereto shall terminate immediately: (i) in the
event of the Employee's death; or (ii) if the Company ceases to conduct
business.
6.2 Prior to the Termination Date, the Company may, upon written
notice to the Employee, immediately thereafter terminate the Employee's
employment for proper cause, as limited to the grounds set forth herein ("For
Cause"), and in the event of such For Cause termination, the Employee shall not
be entitled to any Compensation or Severance Package Compensation following the
date set forth on the written notification of such For Cause termination. The
following shall be considered the exclusive grounds for Cause termination, and
the Board of Directors shall notify the Employee of the specific event or events
on which it has based its bona fide and good faith determination that grounds
exist to terminate the Employee For Cause, which grounds shall be limited to the
following: (i) the Employee's conviction of a felony or of any lesser crime or
offense involving the property of the Company or of any customer or client of
the Company. (ii) the commission by the Employee of an act of fraud,
misappropriation or embezzlement against the Company; (iii) the commission by
the Employee of an act, or failure by the Employee to take any action, which the
Company determines to be willful maleficence or negligence in the performance of
the Employee's duties hereunder to the Company; (iv) the Employee's conviction
of any crime or the commission of any act of moral turpitude which reasonably
could be expected to affect the reputation of the Company or the Employee's
ability to perform duties required hereunder; (v) the Employee's material breach
of this Agreement, the Covenant Not To Compete Agreement attached hereto as
Exhibit "C", or the Confidentiality/Waiver of Interest Agreement attached hereto
as Exhibit "D"; (vi) determination by the Company's management should not
continue its efforts to organize or operate its business; or (vii) determination
by the Company's management that it may not be able to timely pay compensation
required under this Agreement as it is due, as a result of the Company's
financial condition.
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6.3 Prior to the Termination Date, the Company may, upon 30 days
written notice to the Employee, immediately thereafter terminate the Employee's
employment without cause (For Cause being limited to the grounds set forth in
paragraph 6.2 hereinabove). In the event of such without cause termination, the
Company shall pay to Employee, a severance package consisting of the
Compensation set forth in paragraph 1 of Exhibit "B" and Benefits as described
in paragraph 5(a) herein above ("Severance Package Compensation"), which would
have been due and owing to Employee during the three month period following the
date of such Termination if terminated during the initial 18 months after
commencement of employment ("Severance Payment Period"). For termination after
the initial 18 months from commencement of employment, the Severance Package
Compensation shall have a term of six months. The Severance Package
Compensation shall be paid during the Severance Payment Period (in the event of
termination either for cause or not for cause no compensation shall be paid to
employee for any accrued but unused vacation) at the same intervals as the
Compensation and Benefits would have been paid had the employment not been
terminated.
6.4 Prior to the Termination Date, the Employee may, upon 30 days
written notice to the Company, terminate Employee's employment with the
Company, and in such event, Employee shall not be entitled to any Compensation
or Severance Package Compensation following the date of such termination.
6.5 In the event this Agreement is not terminated prior to its
Termination Date as set forth hereinabove in this paragraph 6, then in such
event this Agreement shall terminate upon the Termination Date.
7. NON-COMPETITION. Simultaneously with his execution of this Agreement,
Employee shall execute a Covenant Not to Compete Agreement with the Company, as
set forth on Exhibit "C" which is attached hereto, incorporated herein and made
a part hereof.
8. CONFIDENTIALITY/WAIVER OF INTEREST. Simultaneously with his execution
of this Agreement, Employee shall execute a Confidentiality/Waiver of Interest
Agreement with the Company, as set forth on Exhibit "D" which is attached
hereto, incorporated herein and made a part hereof.
9. NOTICES. Any notice provided for in this Agreement must be in writing
and must be either personally delivered or mailed by certified mail, return
receipt required, to the recipient at the address indicated below:
TO THE COMPANY: TO THE EMPLOYEE:
SmartGate, X.X. Xxxxx X. Xxxxxxxxx
0000-X 00xx Xxx. Xxxx 0000 Xxxxxxxxxx Xxxxxxx #00
Xxxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
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10. SEVERABILITY. In the event that any provision of this Agreement shall be
held to be unreasonable, invalid, or unenforceable for any reason whatsoever,
the parties agree that: (i) such invalidity or unenforceability shall not affect
any other provision of this Agreement and the remaining covenants, restrictions,
and provisions hereof shall remain in full force and effect; and (ii) any court
of competent jurisdiction may so modify the objectionable provision as to make
it valid, reasonable, and enforceable, and such provision, as so modified, shall
be valid and binding as though the invalid, unreasonable, or unenforceable
portion thereof had not been included therein.
11. COMPLETE AGREEMENT. This Agreement contains the entire agreement of
the parties and supersedes and preempts any prior understandings, agreements or
representations between Employee and Company regarding the employment of
Employee.
12. COUNTERPARTS. This Agreement may be simultaneously executed in two
counterparts, each of which shall be an original, and all of which shall
constitute but one and the same instrument.
13. CHOICE OF LAW. This Agreement shall be governed by and construed in
accordance with the laws of the state of Florida, with venue in Sarasota County,
Florida.
14. ATTORNEY'S FEES. In the event that either party to this Agreement
shall be forced to retain the services of any attorney to enforce any of the
provisions hereof, than the prevailing party in any ensuing litigation shall be
entitled to recover from the non-prevailing party the prevailing party's
reasonable attorney's fees, court costs or other expenses of litigation, whether
incurred at trial or upon appeal.
15. AMENDMENTS/WAIVERS. This Agreement may only be modified, amended, or
waived by a writing duly authorized and executed by all parties.
16. LEGAL REPRESENTATION. This Agreement has been prepared for the
Company by XXXXXX & XXXXX, P.A., its legal counsel. A principle of XXXXXX &
XXXXX, P.A., Xx. Xxxxxx, is also a stockholder and officer of the Company.
Employee has been expressly advised that neither XXXXXX & XXXXX, P.A. nor Xx.
Xxxxxx has provided any legal advice to him and that he may wish to seek
independent legal counsel in connection with this Agreement or matters related
thereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
THE COMPANY: EMPLOYEE:
SMARTGATE, L.C.
By: /s/ XXXXXXX X. XXXXXXX /s/ XXXXX X. XXXXXXXXX
----------------------------- --------------------------------
Xxxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxxxx
President
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EXHIBIT "A"
Employment Agreement
between SMARTGATE, L.C.
and
XXXXX X. XXXXXXXXX
Director of R & D and Technical Services
In accordance with Paragraph 2, Employee shall perform the following duties:
All duties associated with research and development, technical services,
manufacturing, quality control, shipping, and other duties as may be assigned
from time to time by the Company's President.
EXHIBIT "B"
Employment Agreement
BETWEEN SMARTGATE, L.C.
and
XXXXX X. XXXXXXXXX
In accordance with Paragraph 3, Employee shall be paid the following
Compensation payable as set forth below.
1. Upon the Company receiving a round of financing in an amount of
not less than $500,000.00, Employee's employment under this
Agreement shall commence ("Commencement Date").
- Beginning on the Commencement Date, Employee shall be
paid a monthly salary of $3,500.00 per month, gross
salary, to be paid in two increments each month;
- Subsequent increases shall be based upon semi-annual
reviews; and
- Upon favorable review, Employee's salary shall be
increased to $4,000.00 per month on the six (6) month
anniversary date of the Commencement Date of this
Agreement.
2. Bonuses, if any, as may be designated from time to time by the
Company's management.
3. Beginning after six (6) months of continuous employment,
Employee shall be entitled to take three (3) weeks of paid
vacation annually, provided, however, Employee shall not take
more than two consecutive days of said vacation during the
period from April 1 to October 1, and further provided, Employee
gives the Company not less than one month's prior notice of
taking any vacation time and receiving the Company's approval.
INTEROFFICE MEMORANDUM
TO: XXXXX XXXXXXXXX
FROM: S.A. MICHAEL
DATE: 02/14/00
RE: EMPLOYMENT AGREEMENT EXHIBIT B
--------------------------------------------------------------------------------
In accordance with your Employment Agreement with SmartGate, L.C.,
specifically Exhibit "B", regarding Compensation after funding of SmartGate L.C.
referred to as "Commencement Date", your salary increase was to be $3500 per
month for the first six months. After favorable review following the six months,
your salary was to increase to $4000 and annual vacation increased to three(3)
weeks.
Due to the delay in length of time for funding and finalizing the
Closing, the six month review period is waived and your salary increase will be
effective immediately to $4000 per month and 3 weeks vacation, with limitations
as stated in paragraph 1 and 3 of Exhibit "B".
/s/ S.A. MICHAEL 2-14-00
-------------------------------- --------------------------------
S.A. Michael, President Date
Cc: Personnel File
Accounting
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SMARTGATE, L.C. ** COMPANY CONFIDENTIAL
EXHIBIT "C"
Covenant Not to Compete
COVENANT NOT TO COMPETE
---------------------------------
THIS COVENANT NOT TO COMPETE is made and entered into by and between
SMARTGATE, L.C., a Florida corporation (hereinafter referred to as the
"Company"), and XXXXX X. XXXXXXXXX (hereinafter referred to as the "Second
Party").
RECITALS:
WHEREAS, the Company is in the business of developing, manufacturing and
marketing safety systems for commercial overhead doors, parking, sliding, and
swinging gates ("Products") based upon proprietary technology.
WHEREAS, Second Party is an employee of the Company; and
WHEREAS, Second Party acknowledges that the Company's business
activities extend throughout the world; and
WHEREAS, Second Party acknowledges that through such employment he has
and/or will acquire a special knowledge of the processes, technologies,
drawings, designs and methods of manufacture of the Company's Products; and the
clients, accounts, business lists, prospects, records, corporate policies,
operational methods and techniques and other useful information and trade
secrets of the Company (hereinafter all collectively referred to and defined as
"Confidential Information"); and
WHEREAS, Second Party acknowledges that the Company's legitimate
business interests include the Confidential Information and the Company's
customer goodwill (hereinafter referred to and defined as the "Company's
Legitimate Business Interests") and that the Company's Legitimate Business
Interests would be harmed if Second Party engaged in competitive activities with
the Company anywhere throughout the world; and
WHEREAS, the Company and Second Party, pursuant to the provisions of
Florida Statute 542.33, wish to enter into an agreement as embodied herein
whereby Second Party will refrain from owning, managing, or in any manner or
capacity working for a business conducting business activities which are similar
to or competitive with those of the Company and from soliciting customers of the
Company and employees of the Company for competitive purposes during Second
Party's employment with the Company and during the period of two years after
Second Party's cessation of employment with the Company in the geographical
location of anywhere throughout the world.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, and for additional
good and valuable consideration the receipt and sufficiency of which is
acknowledged by the parties, including, but not limited to, the Second Party's
employment with the Company and the continuation of the Second Party's
employment with the Company, the parties mutually agree as follows:
1. CONFIRMATION OF RECITALS - The foregoing recitals are true and
correct and are hereby ratified and confirmed by the parties and made an
integral part of this Agreement; as such, the recitals shall be used in any
construction of this Agreement, especially as it relates to the intent of the
parties.
2. NON-COMPETE - The Second Party will not do, or intend to do, any
of the following, either directly or indirectly, during Second Party's
employment with the Company and during the period of two years after Second
Party's cessation of employment with the Company, anywhere throughout the world:
a. Own, manage, operate, control, consult for, be an officer or
director of, work for, or be employed in any capacity by any
company or any other business, entity, agency or organization
which conducts operations or activities that are in any manner
similar to those conducted by the Company or that are in any
manner competitive with those of the Company; or
b. Solicit prior or current customers of the Company; or
c. Solicit any employees employed by the Company.
The Second Party and Company agree that the phrase "Second Party's
cessation of employment with the Company" as used in this Agreement, refers to
any separation of Second Party from his employment at the Company either
voluntarily or involuntarily, either with cause or without cause, or whether the
separation is at the behest of the Company or the Second Party (hereinafter
referred to and defined as "Second Party's Cessation of Employment").
3. INJUNCTION AND DAMAGES - Second Party agrees that this Agreement
is important, material, confidential, and gravely effects the effective and
successful conduct of the business of the Company, and it effects its reputation
and good will and is necessary to protect the Company's Legitimate Business
Interests. Second Party recognizes and agrees that the Company will suffer
irreparable injury in the event of Second Party's breach of any covenant or
agreement contained herein and cannot be compensated by monetary damages alone,
and Second Party therefore agrees that the Company, in addition to and without
limiting any other remedies or rights that it may have, either under this
Agreement or otherwise, shall have the right to obtain injunctive relief, both
temporary and permanent, against the Second Party from any court of competent
jurisdiction. Second Party further agrees that in the event of Second Party's
breach of any covenant or agreement contained herein, the Company, in addition
to its right to obtain injunctive relief, shall further be entitled to seek
damages, including, but not limited to, compensatory, incidental, consequential,
exemplary, and lost profits damages. Second Party agrees to pay the Company's
reasonable attorney's fees and costs for enforcement of this Agreement, if the
Second Party breaches this Agreement.
4. MISCELLANEOUS - Wherever used in this Agreement, the phrase
"directly or indirectly" includes, but is not limited to Second Party acting
through Second Party's wife, children, parents, brothers, sisters, or any other
relatives, friends, trustees, agents, associates or entities with which Second
Party is affiliated with in any capacity. The Company may waive a provision of
this Agreement only in a writing signed by a representative of the Company and
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specifically stating what is waived. The rights of the Company under this
Agreement may be assigned; however, the covenants, warranties, and obligations
of the Second Party cannot be assigned without the prior written approval of the
Company. The title of this Agreement and the paragraph headings of this
Agreement are not substantive parts of this Agreement and shall not limit or
restrict this Agreement in any way. This Agreement survives after the Second
Party's Cessation of Employment. No change, addition, deletion, or amendment of
this Agreement shall be valid or binding upon Second Party or the Company unless
in writing and signed by Second Party and the Company. This Agreement is
intended to be a valid contract under Section 542.33, Florida Statutes. In the
event a court of competent jurisdiction determines any covenant set forth herein
to be too broad to be enforceable or determines this Agreement to be
unreasonable, then said court may reduce the geographical area and/or the length
of time provisions herein, in order to make this Agreement enforceable and
reasonable. This Agreement shall be governed by Florida law. The parties agree
that venue for any action brought under this Agreement shall be in Sarasota
County, Florida. In construing this Agreement, neither of the parties hereto
shall have any term or provision construed against such party solely by reason
of such party having drafted same as each provision of this Agreement is deemed
by the parties to have been jointly drafted by the Company and Second Party.
5. SECOND PARTY ACKNOWLEDGMENT - The Second Party, acknowledges
that he has voluntarily and knowingly entered into this Agreement and that this
Agreement encompasses the full and complete agreement between the parties with
respect to the matters set forth herein.
6. LEGAL REPRESENTATION - This Agreement has been prepared for the
Company by XXXXXX & XXXXX, P.A. its legal counsel. A principle of XXXXXX &
XXXXX, P.A., Xx. Xxxxxx, is also a stockholder and officer of the Company.
Second Party has been expressly advised that neither XXXXXX & XXXXX, P.A. nor
Xx. Xxxxxx have provided any legal advise to him and that he may wish to seek
independent legal counsel in connection with this Agreement or matters related
thereto.
Executed on this 5th day of February, 1999
SMARTGATE, L.C.
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------
Print: Xxxxxxx X. Xxxxxxx
Title: President
SECOND PARTY
/s/ XXXXX X. XXXXXXXXX
-------------------------------
Print: Xxxxx X. Xxxxxxxxx
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EXHIBIT "D"
Confidentiality/Waiver of Interest Agreement
CONFIDENTIALITY/WAIVER OF INTEREST AGREEMENT
--------------------------------------------
THIS AGREEMENT is made and entered into by and between SMARTGATE, L.C.
(hereinafter referred to and defined as the "Company") and XXXXX X. XXXXXXXXX,
(hereinafter referred to and defined as the "Second Party").
WHEREAS, the Company is in the business of creating, developing,
manufacturing, commercializing and marketing technology for sensing devices
utilizing radiowaves, and other unique technologies and products currently owned
by the Company (Products and Technologies").
WHEREAS, Second Party is an officer and an agent of the Company who
stands to benefit if the Company is successful and profitable in meeting its
business goals and objectives; and
WHEREAS, Second Party is fully aware and knowledgeable of the Products
and Technologies in existence as of the date hereof; and
WHEREAS, Second Party recognizes that by virtue of Second Party's
relationship with the Company, Second Party has or will acquire a special
knowledge of the processes, technologies, drawings, designs, and methods of
manufacture of the Products and Technologies and future Products and
Technologies, and the clients, accounts, business lists, prospects, records,
corporate policies, operational methods and techniques and other useful
information and trade secrets of the Company (hereinafter all collectively and
referred to and defined as "Confidential Information"); and
WHEREAS, Second Party acknowledges that the Company's Confidential
Information represents valuable, special and unique assets of the Company; and
WHEREAS, Second Party acknowledges that the Company's legitimate
business interests include the Confidential Information and the Company's
customer goodwill (hereinafter referred to and defined as "the Company's
Legitimate Business Interests") and that the Company's Legitimate Business
Interests would be harmed if Second Party would divulge or disclose the
Confidential Information to any third-party while the Second Party is an
employee or Officer of the Company, or at anytime thereafter; and
WHEREAS, in addition to the foregoing, the Second Party acknowledges
that it is in Second Party's and the Company's best interest that any of the
Products and Technologies developed by or with the assistance of Second Party
shall be the exclusive property of the Company.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, and for additional
good and valuable consideration the receipt and sufficiency of which is
acknowledged by the parties, including, but not limited to the Second Party's
agency with the Company and the continuation of the Second Party's agency with
the Company, the parties mutually agree as follows:
1. CONFIRMATION OF RECITALS - The foregoing recitals are true and
correct and are hereby ratified and confirmed by the parties and are made an
integral part of this Agreement; as such, the recital shall be used in any
construction of this Agreement, especially as it relates to the intent of the
parties.
2. WAIVER OF INTEREST - Second Party acknowledges and agrees that
the Company shall be the sole and exclusive owner of all rights in or to the
Products and Technologies and all technologies, drawings, designs, confidential
ideas, trade secrets, documentation, annotation and other information related to
the Products and Technologies whether developed by Second Party or otherwise,
including any patent applications, patents, trade names, and copyrights related
thereto (hereinafter collectively referred to and defined as "Rights and
Information"). Accordingly, Second Party irrevocably, perpetually, and
absolutely assigns and relinquishes to the Company all right, title, claim or
interest Second Party has or may have in or to the Products and Technologies and
all technologies, drawings, designs, confidential ideas, trade secrets,
documentation, annotation and other information related to the Products and
Technologies developed by the Company or by Second Party or with the assistance
of Second Party, including any patent applications, patents, trade names,
trademarks and copyrights related thereto, and Second Party agrees to execute
any and all documentation necessary to effectuate the above described transfer
of ownership.
3. FUTURE IMPROVEMENTS - Second Party acknowledges and agrees that
the provisions of Paragraph 2 above shall govern and apply to any new Products
and Technologies or later developed Products and Technologies and to all Rights
and Information related thereto, and to any improvements, modifications or
alterations to the Products and Technologies and to all Rights and Information
related thereto as fully and completely it as applies to the Products and
Technologies and to all Rights and Information related thereto in existence on
the date hereof.
4. CONFIDENTIALITY - Second Party agrees with the Company that
Second Party shall maintain all Confidential Information on a confidential basis
and shall not at any time in the future disclose nor divulge the Confidential
Information to any third Party, except when Second Party has obtained the prior
written approval of the Company, and in the event of any such approved
disclosure, Second Party, prior to making such disclosure, will have obtained
from the receiving party, a signed Confidentiality Agreement or other non
disclosure instrument by the Company.
5. INJUNCTION AND DAMAGES - Second Party agrees that this Agreement
is important, material and gravely affects the effective and successful conduct
of the business of the Company, and it also affects the Company's reputation and
goodwill, and is necessary to protect the Company's Legitimate Business
Interests. The Second Party further recognizes and agrees that the Company will
suffer irreparable injury in the event of Second Party's breath of any covenant
or agreement contained in this Agreement and cannot be compensated by monetary
damages alone. Accordingly, the Second Party agrees that, in addition to and
without limiting any other remedies or rights that the Company may have, the
Company shall have the right to obtain injunctive relief, both temporary and
permanent, against the Second Party from any court of competent jurisdiction. In
addition to said injunctive relief, the Company shall also be entitled to seek
damages, including, but not limited to compensatory, incidental, consequential,
exemplary, and lost profits damages. Second Party agrees to pay the Company's
reasonable attorney's fees and costs for enforcement of this Agreement, if the
Second Party breaches this Agreement.
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6. GOVERNING LAW - This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida. The parties agree
that venue for enforcement of any type under this Agreement shall be in Sarasota
County, Florida.
7. SURVIVORS - This Agreement survives after Second Party is no
longer an agent of the Company.
8. MISCELLANEOUS - No change, addition, deletion, or amendment of
this Agreement shall be valid or binding upon Second Party or the Company unless
in writing and signed by Second Party and the Company. The rights of the Company
under this Agreement may be assigned; however, the covenants and agreements of
the Second Party pursuant to this Agreement cannot be assigned. The title of
this Agreement and the paragraph headings of this Agreement are not substantive
parts of this Agreement and shall not limit or restrict the Agreement in any
way. In construing this Agreement, neither of the parties hereto shall have any
term or provision of this Agreement construed against such party solely by
reason of such party having drafted same as each provision of this Agreement is
deemed by the parties to have been jointly drafted by the Company and Second
Party.
9. SECOND PARTY ACKNOWLEDGMENT - The Second Party, acknowledges
that Second Party has voluntarily and knowingly entered into this Agreement and
that this Agreement encompasses the full and complete agreement between the
parties with respect to the matters set forth herein.
10. LEGAL REPRESENTATION - This Agreement has been prepared for the
Company by XXXXXX & XXXXX, P.A. its 1ega1 counsel. A principle of XXXXXX &
XXXXX, P.A., Xx. Xxxxxx, is also a stockholder and officer of the Company.
Second Party has been expressly advised that neither XXXXXX & XXXXX, P.A. nor
Xx. Xxxxxx has provided any legal advice to him and that he may wish to seek
independent legal counsel in connection with this Agreement or matters related
thereto.
Executed on this 5th day of February, 1999
SMARTGATE, L.C.
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------
Print: Xxxxxxx X. Xxxxxxx
Title: President
SECOND PARTY
/s/ XXXXX X. XXXXXXXXX
-------------------------------
Print: Xxxxx X. Xxxxxxxxx
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