EXHIBIT 10.2
EMPLOYMENT AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT DESCRIBES THE BASIC LEGAL
AND ETHICAL RESPONSIBILITIES THAT YOU ARE REQUIRED TO OBSERVE AS AN EXECUTIVE
EXPOSED TO HIGHLY SENSITIVE TECHNOLOGY AND STRATEGIC INFORMATION. CONSULT WITH
YOUR LEGAL COUNSEL IF ALL THE TERM OR RENEWAL PERIOD AND PROVISIONS OF THIS
AGREEMENT ARE NOT FULLY UNDERSTOOD BY YOU.
THIS AGREEMENT is made as of the 6th day of March, 2004, by and between
XXXXX ENTERPRISES, INCORPORATED, a Florida corporation (the "Company"), and W.
XXXXXXX XXXXXXX (the "Executive").
W I T N E S S E T H :
WHEREAS, the Company desires to assure itself of the Executive's continued
employment in an executive capacity as the Company's Group Executive and Senior
Vice President, Finance; and
WHEREAS, the Executive desires to be employed by the Company on the terms
and conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the parties contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
covenant and agree as follows:
1. EMPLOYMENT AND DUTIES. Subject to the terms and conditions of this
Agreement, the Company shall employ the Executive during the Term (as
hereinafter defined) as its Group Executive and Senior Vice President, Finance.
The Executive shall report to the Office of the Chairman, which will comprise
the Chairman of the Board of Directors, the Chief Executive Officer, and the
President of the Company. The Executive accepts such employment and agrees to
devote his/her best efforts and entire business time, skill, labor, and
attention to the performance of such duties. During the Term, the Executive
agrees to promptly provide a description of any other commercial duties or
pursuits engaged in by the Executive to the Company's Board of Directors. If the
Board of Directors determines in good faith that such activities conflict with
the Executive's performance of his/her duties hereunder, the Executive shall
promptly cease such activities to the extent as directed by the Board of
Directors. It is acknowledged and agreed that such description shall be made
regarding any such activities in which the Executive owns more than 5% of the
ownership of the organization or which may be in violation of Section 5 hereof,
and that the failure of the Executive to provide any such description shall
enable the Company to terminate the Executive for Cause (as provided in Section
6(c) hereof). The Company agrees to hold any such information provided by the
Executive confidential and not disclose the same to any person other than a
person to whom disclosure is reasonably necessary or appropriate in light of the
circumstances. In addition, the Executive agrees to serve without additional
compensation if elected or appointed to any office or position, including as a
director, of the Company or any subsidiary or affiliate of the Company;
provided, however, that the Executive shall be entitled to receive such benefits
and additional compensation, if any, that is paid to executive officers of the
Company in connection with such service.
2. TERM. Subject to the terms and conditions of this Agreement, including,
but not limited to, the provisions for termination set forth in Section 6
hereof, the employment of the Executive under this Agreement shall commence on
the effective date hereof and shall continue through and including the close of
business on the date set forth on Exhibit A attached hereto and incorporated
herein (such Term shall herein be defined as the "Term"). Provided, however,
that the Term shall renew automatically for successive two (2) year periods
("Renewal Periods") unless either party gives written notice of termination at
least that number of days set forth on Exhibit A before the end of the Term or
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Renewal Period, as applicable ("Renewal Notice Period"). The Executive agrees
that some portions of this Agreement, including Sections 4, 5, AND 6 hereof,
will remain in force after the termination of this Agreement.
3. COMPENSATION.
(a) Base Salary and Bonus. As compensation for the Executive's services
under this Agreement, the Executive shall receive and the Company shall pay a
weekly base salary set forth on Exhibit A. Such base salary may be increased but
not decreased during the Term in the Company's discretion based upon the
Executive's performance and any other factors the Company deems relevant. Such
base salary shall be payable in accordance with the policy then prevailing for
the Company's executives. In addition to such base salary, the Executive shall
be entitled during the Term to a performance bonus set forth on Exhibit A and to
participate in and receive payments from, at the Company's election, other bonus
and other incentive compensation plans, if any, as may be adopted by the Company
and made available to other similarly-situated executive officers of the
Company.
(b) Payments. All amounts paid pursuant to this Agreement shall be subject
to withholding or deduction by reason of the Federal Insurance Contribution Act,
federal income tax, state and local income tax, if any, and comparable laws and
regulations.
(c) Other Benefits. The Executive shall be reimbursed by the Company for
all reasonable and customary travel and other business expenses incurred by the
Executive in the performance of the Executive's duties hereunder in accordance
with the Company's standard policy regarding expense verification practices. The
Executive shall be entitled to that number of weeks paid vacation per year that
is available to other executive officers of the Company in accordance with the
Company's standard policy regarding vacations and such other fringe benefits as
may be set forth on Exhibit A and shall be eligible to participate in such
pension, life insurance, health insurance, disability insurance, and other
executive benefits plans, if any, which the Company may from time to time make
available to its similarly-situated executive officers generally.
4. CONFIDENTIAL INFORMATION.
(a) The Executive has acquired and will acquire information and knowledge
respecting the intimate and confidential affairs of the Company, including,
without limitation, confidential information with respect to the Company's
technical data, research and development projects, methods, products, software,
financial data, business plans, financial plans, customer lists, business
methodology, processes, production methods and techniques, promotional materials
and information, and other similar matters treated by the Company as
confidential (the "Confidential Information"). Accordingly, the Executive
covenants and agrees that during the Executive's employment by the Company
(whether during the Term or Renewal Period hereof or otherwise) and thereafter,
the Executive shall not, without the prior written consent of the Company,
disclose to any person, other than a person to whom disclosure is reasonably
necessary or appropriate in connection with the performance by the Executive of
the Executive's duties hereunder, any Confidential Information obtained by the
Executive while in the employ of the Company.
(b) The Executive agrees that all memoranda; notes; records; papers or
other documents; computer disks; computer, video or audio tapes; CD-ROMs; all
other media and all copies thereof relating to the Company's operations or
business, some of which may be prepared by the Executive; and all objects
associated therewith in any way obtained by the Executive shall be the Company's
property. This shall include, but is not limited to, documents; computer disks;
computer, video and audio tapes; CD-ROMs; all other media and objects concerning
any technical data, methods, products, software, research and development
projects, financial data, financial plans, business plans, customer lists,
contracts, price lists, manuals, mailing lists, advertising materials; and all
other materials and records of any kind that may be in the Executive's
possession or under the Executive's control. The Executive shall not, except for
the Company's use, copy or duplicate any of the aforementioned documents or
objects, nor remove them from the Company's facilities, nor use any information
concerning them except for the Company's benefit, either during the Executive's
employment or thereafter. The Executive covenants and agrees that the Executive
will deliver all of the aforementioned documents and objects, if any, that may
be in the Executive's possession to the Company upon termination of the
Executive's employment, or at any other time at the Company's request.
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(c) In any action to enforce or challenge these Confidential Information
provisions, the prevailing party is entitled to recover its attorney's fees and
costs.
5. COVENANT NOT-TO-COMPETE AND NO SOLICITATION. Executive recognizes that
the Company is in the business of employing individuals to provide specialized
and technical services to the Company's Clients. The purpose of these Covenant
Not-to-Compete and No Solicitation provisions are to protect the relationship
which exists between the Company and its Client while Executive is employed and
after Executive leaves the employ of the Company. The consideration for these
Covenant Not-to-Compete and No Solicitation provisions is the Executive's
employment with the Company.
(a) Executive acknowledges the following:
(1) The Company expended considerable resources in obtaining
contracts with its Clients;
(2) The Company expended considerable resources to recruit and
hire employees who could perform services for its Clients;
(3) Through his/her employ with the Company, Executive will
develop a substantial relationship with the Company's existing or
potential Clients;
(4) Executive will be exposed to valuable confidential
business information about the Company, its Clients, and the
Company's relationship with its Client;
(5) By providing services on behalf of the Company, Executive
will develop and enhance the valuable business relationship between
the Company and its Client;
(6) The relationship between the Company and its Client
depends on the quality and quantity of the services Executive
performs;
(7) Through employment with the Company, Executive will
increase his/her opportunity to work directly for the Client or for
a competitor of the Company; and
(8) The Company will suffer irreparable harm if Executive
breaches these Covenant Not-to-Compete and No Solicitation
provisions of this Agreement.
(b) Executive agrees that:
(1) The relationship between the Company and its Client
(developed and enhanced when the Executive performs services on
behalf of the Company) is a legitimate business interest for the
Company to protect;
(2) The Company's legitimate business interest is protected by
the existence and enforcement of these Covenant Not-to-Compete and
No Solicitation provisions;
(3) The business relationship which is created or exists
between the Company and its Client, or the goodwill resulting from
it, is a business asset of the Company and not the Executive; and
(4) Executive will not seek to take advantage of opportunities
which result from his/her employment with the Company and that
entering into the Agreement containing Covenant Not-to-Compete and
No Solicitation provisions is reasonable to protect the Company's
business relationship with its Clients.
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(c) Restrictions on Executive. During the term of this Agreement and
for a period of time set forth on Exhibit A after the termination of this
Agreement, for whatever reason, whether such termination was by the
Company or the Executive, voluntarily or involuntarily, and whether with
or without cause, Executive agrees that he/she shall not, as a principal,
employer, stockholder, partner, agent, consultant, independent contractor,
employee, or in any other individual or representative capacity:
(1) Directly or indirectly engage in, continue in, or carry on
the business of the Company or any business substantially similar
thereto, including owning or controlling any financial interest in
any corporation, partnership, firm, or other form of business
organization which competes with or is engaged in or carries on any
aspect of such business or any business substantially similar
thereto;
(2) Consult with, advise, or assist in any way, whether or not
for consideration of any kind, any corporation, partnership, firm,
or other business organization which is now, becomes, or may become
a competitor of the Company in any aspect of the Company's business
during the Executive's employment with the Company, including, but
not limited to, advertising or otherwise endorsing the products of
any such competitor or loaning money or rendering any other form of
financial assistance to or engaging in any form of transaction
whether or not on an arm's length basis with any such competitor;
(3) Provide or attempt to provide or solicit the opportunity
to provide or advise others of the opportunity to provide any
services of the type Executive performed for the Company or the
Company's Clients (regardless of whether and how such services are
to be compensated, whether on a salaried, time and materials,
contingent compensation, or other basis) to or for the benefit of
any Client (i) to which Executive has provided services in any
capacity on behalf of the Company, or (ii) to which Executive has
been introduced to or about which the Executive has received
information through the Company or through any Client from which
Executive has performed services in any capacity on behalf of the
Company;
(4) Retain or attempt to retain, directly or indirectly, for
itself or any other party, the services of any person, including any
of the Company's employees, who were providing services to or on
behalf of the Company while Executive was employed by the Company
and to whom Executive has been introduced or about whom Executive
has received information through the Company or through any Client
for which Executive has performed services in any capacity on behalf
of the Company;
(5) Engage in any practice, the purpose of which is to evade
the provisions of this Agreement or to commit any act which is
detrimental to the successful continuation of or which adversely
affects the business or the Company; provided, however, that the
foregoing shall not preclude the Executive's ownership of not more
than 2% of the equity securities of a company whose securities are
registered under Section 12 of the Securities Exchange Act of 1934,
as amended; or
(6) For purpose of these Covenant Not-to-Compete and No
Solicitation provisions, Client includes any subsidiaries,
affiliates, customers, and clients of the Company's Clients. The
Executive agrees that, for the purpose of Sections 5(c)(1), 5(c)(2),
and 5(c)(4), the geographic scope of this Covenant Not-to-Compete
shall extend to the geographic area that is within 50 miles of any
of the Company's business locations. For purposes of Section
5(c)(3), the geographic scope of this Covenant Not-to-Compete shall
extend to the geographic area where the Company's Clients conduct
business at any time during the Term of this Agreement. For
purposes, this Agreement, "Clients" means any person or entity to
which the Company provides or has provided within a period of one
(1) year prior to the Executive's termination of employment, labor,
materials or services for the furtherance of such entity's or
person's business or any person or entity that within such period of
one (1) year the Company has pursued or communicated with for the
purpose of obtaining business for the Company.
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(d) Enforcement. These Covenant Not-to-Compete and No Solicitation
provisions shall be construed and enforced under the laws of the State of
Florida. In the event of any breach of this Covenant Not-to-Compete, the
Executive recognizes that the remedies at law will be inadequate, and that
in addition to any relief at law which may be available to the Company for
such violation or breach and regardless of any other provision contained
in this Agreement, the Company shall be entitled to equitable remedies
(including an injunction) and such other relief as a court may grant after
considering the intent of this Section 5. It is further acknowledged and
agreed that the existence of any claim or cause of action on the part of
the Executive against the Company, whether arising from this Agreement or
otherwise, shall in no way constitute a defense to the enforcement of this
Covenant Not-to-Compete, and the duration of this Covenant Not-to-Compete
shall be extended in an amount which equals the time period during which
the Executive is or has been in violation of this Covenant Not-to-Compete.
In the event a court of competent jurisdiction determines that the
provisions of this Covenant Not-to-Compete are excessively broad as to
duration, geographic scope, prohibited activities or otherwise, the
parties agree that this covenant shall be reduced or curtailed only to the
extent necessary to render it enforceable.
e) In an action to enforce or challenge these Covenant
Not-to-Compete and No Solicitation provisions, the prevailing party is
entitled to recover its attorney's fees and costs.
f) By signing this Agreement, the Executive acknowledges that he/she
understands the effects of these Covenant Not-to-Compete and No
Solicitation provisions and agrees to abide by them.
6. TERMINATION
(a) Death. The Executive's employment hereunder shall terminate upon
his/her death. The Company shall pay Executive's estate all accrued but unpaid
base salary and bonus and all accrued but unused vacation time through the date
of death.
(b) Disability. If during the Term the Executive becomes physically or
mentally disabled in accordance with the terms and conditions of any disability
insurance policy covering the Executive, or, if due to such physical or mental
disability the Executive becomes unable for a period of more than six (6)
consecutive months to perform his/her duties hereunder on substantially a
full-time basis as determined by the Company in its reasonable discretion, the
Company may, at its option, terminate the Executive's employment hereunder upon
not less than thirty (30) days' written notice.
(c) Cause. The Company may terminate the Executive's employment hereunder
for Cause effective immediately upon notice. For purposes of this Agreement, the
Company shall have "Cause" to terminate the Executive's employment hereunder:
(i) if the Executive engages in conduct which has caused or is reasonably likely
to cause demonstrable and serious injury to Company; (ii) if the Executive is
convicted of a felony as evidenced by a binding and final judgment, order, or
decree of a court of competent jurisdiction; (iii) for the Executive's neglect
of his/her duties hereunder or the Executive's refusal to perform his/her duties
or responsibilities hereunder as determined by the Company's Board of Directors
in good faith; (iv) consistent failure to achieve goals established by the Board
of Directors or their designee(s), provided that such goals are presented in
writing or otherwise communicated to Executive; (v) gross incompetence; (vi) for
the Executive's violation of this Agreement, including, without limitation,
Section 5 hereof; (vii) chronic absenteeism; (viii) for use of illegal drugs;
(ix) insobriety by the Executive while performing his or her duties hereunder;
and (x) for any act of dishonesty or falsification of reports, records, or
information submitted by the Executive to the Company.
(d) Non-Compete Payment. In the event of a termination of the Executive's
employment pursuant to Section 6 or by the Executive, all payments and Company
benefits to the Executive hereunder, except the payments (if any) specified in
Section 6(a) above or provided below, shall immediately cease and terminate. In
the event of termination by the Company of the Executive's employment with the
Company for any reason other than pursuant to Section 6(c), the Covenant
Not-to-Compete set forth in Section 5 hereof shall remain in full force and
effect through the full stated Term of this Agreement; and additionally, from
the end of the Term of this Agreement through the non-
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compete period stated on Exhibit "A", the Company shall pay the Executive
Not-to-Compete pay in equal biweekly installments ("Non-Compete Payment
Installments") in the amount set forth on Exhibit A ("Non-Compete Payment").
Such Non-Compete Payment, however, shall not be required to be paid by the
Company if the Company elects, in its sole discretion, to release the Executive
from the Covenant Not-to-Compete set forth in Section 5 hereof. Additionally, if
the Company commences paying Executive Non-Compete Payment Installments and
subsequently elects in the future, in its sole discretion, to release Executive
from the Covenant Not-to-Compete and gives notice to Executive, then, at the
effective date of such notice, Executive shall no longer be subject to the
Covenant Not-to-Compete, and no further Non-Compete Payment Installment shall be
due or payable to Executive. If the Company terminates the Executive's
employment pursuant to Section 6(c) or the Executive terminates such employment,
the Executive shall not be entitled to the Non-Compete Payment, and the Covenant
Not-to-Compete set forth in Section 5 hereof shall remain in full force and
effect. Notwithstanding anything to the contrary herein contained, the Executive
shall receive all compensation and other benefits to which he or she was
entitled under this Agreement or otherwise as an executive of the Company
through the termination date.
7. NOTICE. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when hand-delivered, sent by telecopier, facsimile
transmission, or other electronic means of transmitting written documents (as
long as receipt is acknowledged) or mailed by United States certified or
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive, to the address set forth on the signature page.
If to the Company: Xxxxx Enterprises, Incorporated
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Group Executive and Sr. VP Human
Resources
with a copy to:
Xxxxx Enterprises, Incorporated
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: General Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that a notice of change of address shall
be effective only upon receipt.
8. ENFORCEMENT AND GOVERNING LAW. It is stipulated that a breach by
Executive of the restrictive covenants set forth in Sections 4 and 5 of this
Agreement will cause irreparable damage to Company or its Clients, and that in
the event of any breach of those provisions, Company is entitled to injunctive
relief restraining Executive from violating or continuing a violation of the
restrictive covenants as well as other remedies it may have. Additionally, such
covenants shall be enforceable against the Executive's successors or assigns or
by successor assigns.
The validity, interpretation, construction, and performance of this
Agreement shall be governed by the internal laws of the State of Florida. Any
litigation to enforce this Agreement shall be brought in the state or federal
courts of Hillsborough County, Florida, which is the principal place of business
for Company and which is considered to be the place where this Agreement is
made. Both parties hereby consent to such courts' exercise of personal
jurisdiction over them.
In the event action is brought by either party to enforce any of the terms
and conditions set forth herein, the prevailing party is entitled to recover its
reasonable attorneys' fees and costs.
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9. MISCELLANEOUS. No provision of this Agreement may be modified or waived
unless such waiver or modification is agreed to in writing signed by the parties
hereto. No waiver by any party hereto of any breach by any other party hereto
shall be deemed a waiver of any similar or dissimilar term or condition at the
same or at any prior or subsequent time. This Agreement is the entire agreement
between the parties hereto with respect to the Executive's employment by the
Company and there are no agreements or representations, oral or otherwise,
expressed or implied, with respect to or related to the employment of the
Executive which are not set forth in this Agreement. Any prior agreement
relating to the Executive's employment with the Company is hereby superseded and
void, and is no longer in effect. This Agreement shall be binding upon and inure
to the benefit of the Company, its respective successors and assigns, and the
Executive and his/her heirs, executors, administrators and legal
representatives. Except as expressly set forth herein, no party shall assign any
of his/her or its rights under this Agreement without the prior written consent
of the other party and any attempted assignment without such prior written
consent shall be null and void and without legal effect. The parties agree that
if any provision of this Agreement shall under any circumstances be deemed
invalid or inoperative, the Agreement shall be construed with the invalid or
inoperative provision deleted and the rights and obligations of the parties
shall be construed and enforced accordingly. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an original but
all of which together will constitute but one and the same instrument. This
Agreement has been negotiated and no party shall be considered as being
responsible for such drafting for the purpose of applying any rule construing
ambiguities against the drafter or otherwise.
10. PLACE OF PERFORMANCE. During the Term, Executive's principal place of
business shall be located in Tampa, Florida.
11. TERMINATION AFTER CHANGE OF CONTROL. In the event Executive's
employment hereunder is terminated by the Company for any reasons set forth in
Section 6(a), (b), or (c), or by the Executive (other than for Good Reason,
defined herein below), then this Section 11, dealing with Change of Control,
shall have no effect, and Executive shall not be entitled to any Change of
Control Termination Payment in such event. If, however, Executive's employment
hereunder is terminated after a Change of Control (i) by the Executive for Good
Reason; or (ii) by the Company (or any successor thereto or assignee thereof)
other than pursuant to Section 6(a), (b), or (c), then, in that event, Executive
shall receive (in equal installments over two years and in accordance with
Company policy immediately prior to such termination) an amount to be determined
by multiplying by two (2) Executive's base salary and earned bonus (regardless
of whether such bonus is paid by the Company) for the calendar year immediately
prior to such termination ("Change of Control Termination Payment"). A "Change
in Control" shall be deemed to have occurred if the event set forth in any one
of the following paragraphs shall have occurred:
(i) the following individuals cease for any reason to constitute a
majority of the number of directors then serving: individuals who, immediately
after the annual meeting of shareholders of the Company held in 2003,
constituted the Board of Directors and any new directors (other than directors
whose initial assumption of office is in connection with an actual or threatened
election contest, including but not limited to a consent solicitation, relating
to the election of directors of the Company, as such terms are used in Rule
14a-11 of Regulation 14A under the Act) whose appointment or election by the
Board or nomination for election by the Company's stockholders was approved by a
vote or at least two-thirds (2/3) of the directors then still in office who
either were directors immediately after the annual meeting of shareholders of
the Company held in 2003 or whose appointment, election or nomination for
election was previously so approved; or
(ii) the stockholders of the Company approve a merger, consolidation
or share exchange of the Company with any other corporation or approve the
issuance of voting securities of the Company in connection with a merger,
consolidation or share exchange of the Company (or any direct or indirect
subsidiary of the Company) pursuant to applicable stock exchange requirements,
other than (A) a merger, consolidation or share exchange which would result in
the voting securities of the Company outstanding immediately prior to such
merger, consolidation or share continuing to represent (either by remaining
outstanding or by being converted into the right to receive voting securities of
the surviving entity or any parent thereof) at least 50% of the combined voting
power of the voting securities of the Company or such surviving entity or any
parent thereof outstanding immediately after such merger, consolidation or share
exchange, or (B) a merger, consolidation or share exchange effected to implement
a recapitalization of the Company (or similar transaction) in which no Person
(other than Xxxx X. Xxxxx) is or becomes the beneficial owner,
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directly or indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired directly
from the Company or its Affiliates after the annual meeting of shareholders of
the Company held in 2003 pursuant to express authorization by the Board that
refers to this exception) representing 45% or more of either the then
outstanding shares of common stock of the Company or the combined voting power
of the Company's then outstanding voting securities; or
(iii) the stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's assets
(in one transaction or a series of related transactions within any period of 24
consecutive months), other than a sale or disposition by the Company of all or
substantially all of the Company's assets to an entity at least 75% of the
combined voting power of the voting securities of which are owned by Persons in
substantially the same proportions as their ownership of the Company immediately
prior to such sale.
Notwithstanding the foregoing, no "Change in Control" shall be
deemed to have occurred if there is consummated any transaction or series of
integrated transactions immediately following which the record holders of the
common stock of the Company immediately prior to such transaction or series of
transactions continue to have substantially the same proportionate ownership in
an entity that owns all or substantially all of the assets the Company
immediately following such transaction or series of transactions.
The Executive may terminate his own employment pursuant to and only
after the condition of this Section 11 has occurred for Good Reason; and the
Company expressly acknowledges and agrees that, upon such termination, the
Executive shall be entitled to the Change of Control Termination Payment, as
hereinafter defined, to which the Executive, but for such termination, would
otherwise be entitled. For purposes of this Agreement, "Good Reason" shall mean
the occurrence of any of the following events subsequent to a Change of Control:
(i) any reduction of the Base Salary or any other compensation or benefits
(other that the Performance Bonus); or (ii) any other material adverse change to
the terms and conditions of the Executive's employment, including but not
limited to any diminution of the Customary Duties (as herebelow defined).
Subsequent to a Change of Control, the Executive shall continue to
hold such office and such level of authority and responsibility within the
Company either (a) as was held immediately prior to such Change of Control or
(b) of such scope, importance and influence as is customarily associated with
the office held by him at the time of such Change of Control (hereinafter
collectively referred to as the "Customary Duties").
12. ARBITRATION OF DISPUTES.
(a) Duty to Arbitrate. Except for any claim by the Company to enforce the
restrictive covenants set forth in Sections 4 and 5 above, Company and Executive
agree to resolve by binding arbitration any claim or controversy arising out of
or related to Executive's employment by Company or this Agreement, to include
all matters directly or indirectly related to your recruitment, employment or
termination of employment by the Company including, but not limited to claims
involving laws against discrimination whether brought under federal and /or
state law, and/or claims involving co-employees but excluding workers
compensation claims, whether such claim is based in contract, tort, statute, or
any other legal theory, including any claim for damages, equitable relief, or
both. The duty to arbitrate under this Section extends to any claim by or
against any officer, director, shareholder, employee, agent, representative,
parent, subsidiary, affiliate, heir, trustee, legal representative, successor,
or assign of either party making or defending any claim that would otherwise be
arbitrable under this Section. However, this Section shall not be interpreted to
preclude either party from petitioning a court of competent jurisdiction for
temporary injunctive relief, solely to preserve the status quo pending
arbitration of the claim or controversy, upon a proper showing of the need for
such relief.
(b) The Arbitrator. A single arbitrator will conduct the arbitration in
Tampa, Florida, U.S.A., in accordance with the Commercial Arbitration Rules of
the American Arbitration Association (the "Rules"), and judgment upon the
written award rendered by the arbitrator may be entered in any court of
competent jurisdiction. Notwithstanding the application of the Rules, however,
discovery in the arbitration, including interrogatories, requests for
production, requests for admission, and depositions, will be fully available and
governed by the Federal Rules of
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W. Xxxxxxx Xxxxxxx
Civil Procedure and Local Rules of the United States District Court for the
Middle District of Florida. The parties may agree upon a person to act as sole
arbitrator within thirty (30) days after submission of any claim or controversy
to arbitration pursuant to this Section. If the parties are unable to agree upon
such a person within such time period, an arbitrator shall be selected in
accordance with the Rules. The arbitrator will not have the power to award
punitive or exemplary damages.
(c) Limitations Period. The parties agree that any claim or controversy
that would be arbitrable under this Section must be submitted to arbitration
within one (1) year after the claim or controversy arises and that a failure to
institute arbitration proceedings within such time period shall constitute an
absolute bar to the institution of any proceedings, in arbitration or in any
court, and a waiver of all such claims. This Section will survive the expiration
or early termination of this Agreement.
(d) Governing Law. This Agreement shall be governed in its construction,
interpretation, and performance by the laws of the State of Florida, without
reference to law pertaining to conflict of laws. However, the Federal
Arbitration Act, as amended, will govern the interpretation and enforcement of
this Section.
(e) Attorneys' Fees. The prevailing party in any arbitration or dispute,
or in any litigation, arising out of or related to Executive's employment by
Company or this Agreement, shall be entitled to recover all costs and reasonable
attorneys' fees incurred on all levels and in all proceedings, including, but
not limited to, arbitration, filing, hearing, processing, and witness fees, and
any other costs and fees incurred, in any investigations, arbitrations, trials,
bankruptcies, and appeals.
(f) Severability. Each part of this Section is severable. A holding that
any part of this Section is unenforceable will not affect the duty to arbitrate
under this Section.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
XXXXX ENTERPRISES, INCORPORATED EXECUTIVE
By: /s/ Xxxxx X. Xxxxxx /s/ W. Xxxxxxx Xxxxxxx
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Address:
________________________________
________________________________
Executive/ Term or Renewal Period Xxxxx Enterprises Inc.
Revised 7/03 Page Number 9
W. Xxxxxxx Xxxxxxx
EXHIBIT A TO EMPLOYMENT AGREEMENT
Term: Through March 5, 2006
Base Salary: $7,086.54 per week
Performance Bonus: 0% - 75% of annual base salary and based on the
following components:
75% Consolidated EBIT
25% Key Performance Indicators ("KPI")
Performance bonus payments will be made in accordance
with the Company's standard policy for the payment of
performance bonuses.
Fringe Benefits: Standard executive fringe benefits
Renewal Notice Period Three hundred and sixty five (365) days
THE COMPANY RESERVES THE RIGHT, AT ITS SOLE DISCRETION, AT SUCH TIME OR TIMES AS
IT ELECTS, TO CHANGE OR ELIMINATE BONUSES OR OTHER BENEFITS.
IN WITNESS WHEREOF, the parties have executed this Exhibit A to the Employment
Agreement as of the 6th day of March, 2004.
XXXXX ENTERPRISES, INCORPORATED EXECUTIVE
By: /s/ Xxxxx X. Xxxxxx /s/ W. Xxxxxxx Xxxxxxx
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