EXHIBIT 10.51
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of this 1st day of April, 1999, is
by and between WORKFLOW MANAGEMENT, INC., a Delaware corporation (the
"Company"), and XXXXX X. XXXXXX ("Employee").
RECITALS
The Company desires to employ Employee and to have the benefit of his
skills and services, and Employee desires to be employed with the Company, on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, terms,
covenants and conditions set forth herein, and the performance of each, the
parties hereto, intending legally to be bound, hereby agree as follows:
AGREEMENTS
1. EMPLOYMENT; TERM. The Company hereby employs Employee to perform the
duties described herein, and Employee hereby accepts employment with the
Company, for a term beginning on the date hereof and continuing for a period of
two (2) years (the "Initial Term"). The Initial Term shall be renewed for
additional periods of one (1) year each (the "Renewal Periods" and together with
the Initial Term, the "Term") unless the Company provides written notice to
Employee, or Employee provides written notice to the Company, in either case no
less than ninety (90) days prior to the expiration of the Initial Term or of a
Renewal Period, whichever is applicable, that such renewal will not be made.
2. POSITION AND DUTIES. The Company hereby employs Employee as
Executive Vice President and Chief Financial Officer. As such, Employee shall
have responsibilities, duties and authority reasonably accorded to and expected
of an Executive Vice President and the Chief Financial Officer of the Company
and assigned to Employee by the Board of Directors of the Company (the "Board").
Employee will report directly to the Chief Executive Officer of the Company.
Employee hereby accepts this employment upon the terms and conditions herein
contained and agrees to devote substantially all of his professional time,
attention, and efforts to promote and further the business of the Company.
Employee shall faithfully adhere to, execute, and fulfill all policies
established by the Company.
3. COMPENSATION. For all services rendered by Employee, the Company
shall compensate Employee as follows:
(a) BASE SALARY. The base salary payable to Employee shall be
$205,000 per year, payable on a regular basis in accordance with the Company's
standard payroll procedures, but not less often than monthly. On April 1, 2000,
Employee shall be eligible to receive a $30,000 increase to such base salary if,
in the discretion of the Compensation Committee or Board of Directors, such
increase is warranted after a satisfactory performance review; provided,
however, that Employee's base salary shall automatically increase by $30,000 on
April 1, 2000 in the event Xxxxxx X. X'Xxxxxxxx, Xx. is no longer serving as
Chairman and Chief Executive Officer of the Company on such date.
Notwithstanding anything to the contrary herein, on at least an annual basis,
the Board or Compensation Committee will review Employee's performance and may
make any further increases to such base salary if, in its sole discretion, any
such increase is warranted.
(b) INCENTIVE BONUS. During the Term, Employee shall be
eligible to receive an incentive bonus up to the amount, based upon the
criteria, and payable in such amount, at such times as are specified in Exhibit
A attached hereto. The manner of payment, and form of consideration, if any,
shall be determined by the Compensation Committee of the Board, in its sole and
absolute discretion, and such determination shall be binding and final. To the
extent that such bonus is to be determined in light of financial performance
during a specified fiscal period and this Agreement commences on a date after
the start of such fiscal period, any bonus payable in respect of such fiscal
period's results may be prorated. In addition, if the period of Employee's
employment hereunder expires before the end of a fiscal period, and if Employee
is eligible to receive a bonus at such time (such eligibility being subject to
the restrictions set forth in Section 6 below), any bonus payable in respect of
such fiscal period's results may be prorated.
(c) PERQUISITES, BENEFITS, AND OTHER COMPENSATION. During the
Term, in addition to the benefits specifically set forth on Exhibit B, Employee
shall be entitled to receive such perquisites and benefits as are customarily
provided to the Company's executive officers, subject to such changes,
additions, or deletions as the Company may make from time to time, as well as
such other perquisites or benefits as may be specified from time to time by the
Compensation Committee of the Board.
4. EXPENSE REIMBURSEMENT. The Company shall reimburse Employee for (or,
at the Company's option, pay) all business travel and other out-of-pocket
expenses reasonably incurred by Employee in the performance of his services
hereunder during the Term. The Company acknowledges that Employee may, for all
or a portion of the Term, reside away from the Company's headquarters in Palm
Beach, Florida, and thus, all travel to and from Employee's principal residence
for business purposes shall be reimbursed. All reimbursable expenses shall be
appropriately documented in reasonable detail by Employee upon submission of any
request for reimbursement, and in a format and manner consistent with the
Company's expense reporting policy, as well as applicable federal and state tax
record keeping requirements.
5. PLACE OF PERFORMANCE. Employee understands that the Company may
request that he relocate from his present residence to another geographic
location in order to more efficiently carry out his duties and responsibilities
under this Agreement or as part of a promotion or a change in duties and
responsibilities. In such event, the Company will provide Employee with a
relocation allowance, in an amount determined by the Company, to assist Employee
in covering the costs of moving himself, his immediate family, and their
personal property and effects. The total amount and type of costs to be covered
shall be determined by the Company, in light of prevailing Company policy at the
time.
6. TERMINATION; RIGHTS ON TERMINATION. Employee's employment may be
terminated in any one of the followings ways, prior to the expiration or
non-renewal of the Term:
(a) DEATH. The death of Employee shall immediately terminate
the employment and Term, and no severance compensation shall be owed to
Employee's estate.
(b) DISABILITY. If, as a result of incapacity due to physical
or mental illness or injury, Employee shall have been unable to perform the
material duties of his position on a full-time basis for a period of four
consecutive months, or for a total of four months in any six-month period, then
thirty (30) days after written notice to the Employee (which notice may be given
before or after the end of the aforementioned periods, but which shall not be
effective earlier than the last day of the applicable period), the Company may
terminate Employee's employment hereunder if Employee is unable to resume his
full-time duties at the conclusion of such notice period. Subject to Section
6(f) below, if Employee's employment is terminated as a result of Employee's
disability, the Company shall continue to pay Employee his base salary at the
then-current rate for the lesser of (i) five (5) months from the effective date
of termination, or (ii) whatever time period is remaining under the Term. Such
payments shall be made in accordance with the Company's regular payroll cycle.
(c) TERMINATION BY THE COMPANY "FOR CAUSE." The Company may
terminate Employee's employment hereunder ten (10) days after written notice to
Employee "for cause," which shall be: (i) Employee's material breach of this
Agreement, which breach is not cured within ten (10) days of receipt by Employee
of written notice from the Company specifying the breach; (ii) Employee's gross
negligence in the performance of his material duties hereunder, intentional
nonperformance or mis-performance of such duties, or refusal to abide by or
comply with the directives of the Board, his superior officers, or the Company's
policies and procedures, which actions continue for a period of at least ten
(10) days after receipt by Employee of written notice of the need to cure or
cease; (iii) Employee's willful dishonesty, fraud, or misconduct with respect to
the business or affairs of the Company, and that in the reasonable judgment of
the Company materially and adversely affects the operations or reputation of the
Company; (iv) Employee's conviction of a felony or other crime involving moral
turpitude; or (v) Employee's abuse of alcohol or drugs (legal or illegal) that,
in the Company's reasonable judgment, substantially impairs Employee's ability
to perform his duties hereunder. In the event of a termination "for cause," as
enumerated above, Employee shall have no right to any severance compensation.
(d) WITHOUT CAUSE.
(i) At any time after the commencement of employment,
the Company may, without cause, terminate Employee's employment, effective
thirty (30) days after written notice is provided to the Employee. Should
Employee be terminated by the Company without cause, Employee shall receive from
the Company the base salary at the rate then in effect for the longer of (i)
five (5) months from the date of termination, or (ii) whatever time period is
remaining under the Term. Such payments shall be made in accordance with the
Company's regular payroll cycle.
(ii) At any time after the commencement of
employment, the Employee may terminate this Agreement for Good Reason upon
giving the Company thirty (30) days prior written notice. If Employee terminates
this Agreement for Good Reason, Employee shall receive from the Company the base
salary at the rate then in effect for the lesser of (i) six (6) months from the
date of termination, or (ii) whatever time period is remaining under the Term.
Such payments shall be made in accordance with the Company's regular payroll
cycle. For purposes of this Agreement, Good Reason shall mean:
(A) a breach by the Company of any material
obligation to Employee hereunder, which breach is not cured within thirty (30)
days after written notice thereof is given to the Company by Employee; or
(B) Employee's refusal to be relocated from
his present residence to any other geographic location pursuant to a request by
the Company.
(iii) If Employee resigns or otherwise terminates his
employment for any reason, Employee shall receive no severance compensation.
(e) PAYMENT THROUGH TERMINATION. Upon termination of
Employee's employment for any reason provided above, Employee shall be entitled
to receive all compensation earned and all benefits and reimbursements
(including payments for accrued vacation and sick leave, in each case in
accordance with applicable policies of the Company) due through the effective
date of termination. Additional compensation subsequent to termination, if any,
will be due and payable to Employee only to the extent and in the manner
expressly provided above in this Section 6. With respect to incentive bonus
compensation, Employee shall be entitled to receive any bonus declared but not
paid prior to termination. Notwithstanding the foregoing, in the event of a
termination by the Company under Section 6(b) or 6(e), Employee shall be
entitled to receive incentive bonus compensation through the end of the
Company's fiscal year in which termination occurs, calculated as if Employee had
remained employed by the Company through the end of such fiscal year, and paid
in such amounts, at such times, and in such forms as are determined pursuant to
Section 3(b) above and Exhibit A attached hereto. Except as specified in the
preceding two sentences, Employee shall not be entitled to receive any incentive
bonus compensation after the effective date of termination of his employment.
All other rights and obligations of the Company and Employee under this
Agreement shall cease as of the effective date of termination, except that the
Company's obligations under this Section 6(f) and Section 12 below and
Employee's obligations under Sections 7, 8, 9 and 10 below shall survive such
termination in accordance with their terms.
7. RESTRICTION ON COMPETITION.
(a) During the Term and for such period after the Term that
Employee continues to be employed by the Company and/or any other entity owned
by or affiliated with the Company on an "at will" basis and, thereafter, for a
period equal to the longer of (x) one year, or (y) the period during which
Employee is receiving any severance pay or other compensation from the Company
in accordance with the terms of this Agreement, Employee shall not, directly or
indirectly, for himself or on behalf of or in conjunction with any other person,
company, partnership, corporation, business, group, or other entity (each, a
"Person"):
(i) engage, in a competitive capacity, whether as an
owner, officer, director, partner, shareholder, joint venturer, employee,
independent contractor, consultant, advisor, or sales representative, in any
business selling any products or services which were sold by the Company on the
date of the termination of Employee's employment, within 50 miles of any
location where the Company both has an office and conducts business on the date
of the termination of Employee's employment;
(ii) call upon any person who is, at that time, a
sales, supervisory, or management employee of the Company for the purpose or
with the intent of enticing such employee away from or out of the employ of the
Company;
(iii) call upon any person who or that is, at that
time, or has been, within one year prior to that time, a customer of the Company
for the purpose of soliciting or selling products or services in direct
competition with the Company; or
(iv) on Employee's own behalf or on behalf of any
competitor, call upon any person who or that, during Employee's employment by
the Company was either called upon by the Company as a prospective acquisition
candidate with respect to which Employee had actual knowledge or was the subject
of an acquisition analysis conducted by the Company with respect to which
Employee had actual knowledge.
(b) The foregoing covenants shall not be deemed to prohibit
Employee from acquiring as an investment not more than two percent (2%) of the
capital stock of a competing business, whose stock is traded on a national
securities exchange or through the automated quotation system of a registered
securities association.
(c) It is further agreed that, in the event that Employee
shall cease to be employed by the Company and enters into a business or pursues
other activities that, on the date of termination of Employee's employment, are
not in competition with the Company, Employee shall not be chargeable with a
violation of this Section 7 if the Company subsequently enters the same (or a
similar) competitive business or activity or commences competitive operations
within 50 miles of the Employee's new business or activities. In addition, if
Employee has no actual knowledge that his actions violate the terms of this
Section 7, Employee shall not be deemed to have breached the restrictive
covenants contained herein if, promptly after being notified by the Company of
such breach, Employee ceases the prohibited actions.
(d) For purposes of this Section 7, references to "Company"
shall mean Workflow Management, Inc., together with its subsidiaries and
affiliates. For the purposes of this Agreement, "affiliate" shall mean any
entity twenty-five percent or more of the stock of which is owned or controlled,
directly or indirectly, by the Company or any subsidiary of the Company.
(e) The covenants in this Section 7 are severable and
separate, and the unenforceability of any specific covenant shall not affect the
provisions of any other covenant. If any provision of this Section 7 relating to
the time period or geographic area of the restrictive covenants shall be
declared by a court of competent jurisdiction to exceed the maximum time period
or geographic area, as applicable, that such court deems reasonable and
enforceable, said time period or geographic area shall be deemed to be, and
thereafter shall become, the maximum time period or largest geographic area that
such court deems reasonable and enforceable and this Agreement shall
automatically be considered to have been amended and revised to reflect such
determination.
(f) All of the covenants in this Section 7 shall be construed
as an agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Employee against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of such covenants; provided, that upon
the failure of the Company to make any payments required under this Agreement,
the Employee may, upon thirty (30) days' prior written notice to the Company,
waive his right to receive any additional compensation pursuant to this
Agreement and engage in any activity prohibited by the covenants of this Section
7. It is specifically agreed that the period of one year stated at the beginning
of this Section 7, during which the agreements and covenants of Employee made in
this Section 7 shall be effective, shall be computed by excluding from such
computation any time during which Employee is in violation of any provision of
this Section 7.
(g) If the time period specified by this Section 7 shall be
reduced by law or court decision, then, notwithstanding the provisions of
Section 6 above, Employee shall be entitled to receive from the Company his base
salary at the rate in effect on the date of termination of Employee's employment
solely for the longer of (i) the time period during which the provisions of this
Section 7 shall be enforceable under the provisions of such applicable law, or
(ii) the time period during which Employee is not engaging in any competitive
activity, but in no event longer than the applicable period provided in Section
6 above. This Section 7(g) shall be construed and interpreted in light of the
duration of the applicable restrictive covenants.
(h) Employee has carefully read and considered the provisions
of this Section 7 and, having done so, agrees that the restrictive covenants in
this Section 7 impose a fair and reasonable restraint on Employee and are
reasonably required to protect the interests of the Company, and their
respective officers, directors, employees, and stockholders. It is further
agreed that the Company and Employee intend that such covenants be construed and
enforced in accordance with the changing activities, business, and locations of
the Company throughout the term of these covenants.
(i) Notwithstanding any of the foregoing, if the Company
terminates Employee's employment pursuant to Section 6(b) or Section 6(d), then
the restrictions on Employee described in this Section 7 shall only apply for
the period during which Employee is receiving any severance pay from the
Company. The parties expressly agree that Employee shall have the right to
receive, but not the obligation to accept, severance compensation for
termination under either Section 6(b) or Section 6(d).
8. CONFIDENTIAL INFORMATION. Employee hereby agrees to hold in strict
confidence and not to disclose to any third party any of the valuable,
confidential, and proprietary business, financial, technical, economic, sales,
and/or other types of proprietary business information relating to the Company
(including all trade secrets), in whatever form, whether oral, written, or
electronic (collectively, the "Confidential Information"), to which Employee
has, or is given (or has had or been given), access as a result of his
employment by the Company. It is agreed that the Confidential Information is
confidential and proprietary to the Company because such Confidential
Information encompasses technical know-how, trade secrets, or technical,
financial, organizational, sales, or other valuable aspects of the Company's
business and trade, including, without limitation, technologies, products,
processes, plans, clients, personnel, operations, and business activities. This
restriction shall not apply to any Confidential Information that (a) becomes
known generally to the public through no fault of the Employee; (b) is required
by applicable law, legal process, or any order or mandate of a court or other
governmental authority to be disclosed; or (c) is reasonably believed by
Employee, based upon the advice of legal counsel, to be required to be disclosed
in defense of a lawsuit or other legal or administrative action brought against
Employee; provided, that in the case of clauses (b) or (c), Employee shall give
the Company reasonable advance written notice of the Confidential Information
intended to be disclosed and the reasons and circumstances surrounding such
disclosure, in order to permit the Company to seek a protective order or other
appropriate request for confidential treatment of the applicable Confidential
Information.
9. INVENTIONS. Employee shall disclose promptly to the Company any and
all significant conceptions and ideas for inventions, improvements, and valuable
discoveries, whether patentable or not, that are conceived or made by Employee,
solely or jointly with another, during the period of employment or within one
year thereafter, and that are directly related to the business or activities of
the Company and that Employee conceives as a result of his employment by the
Company, regardless of whether or not such ideas, inventions, or improvements
qualify as "works for hire." Employee hereby assigns and agrees to assign all
his interests therein to the Company or its nominee. Whenever requested to do so
by the Company, Employee shall execute any and all applications, assignments, or
other instruments that the Company shall deem necessary to apply for and obtain
Letters Patent of the United States or any foreign country or to otherwise
protect the Company's interest therein.
10. RETURN OF COMPANY PROPERTY. Promptly upon termination of Employee's
employment by the Company for any reason or no reason, Employee or Employee's
personal representative shall return to the Company (a) all Confidential
Information; (b) all other records, designs, patents, business plans, financial
statements, manuals, memoranda, lists, correspondence, reports, records, charts,
advertising materials, and other data or property delivered to or compiled by
Employee by or on behalf of the Company or its representatives, vendors, or
customers that pertain to the business of the Company, whether in paper,
electronic, or other form; and (c) all keys, credit cards, vehicles, and other
property of the Company. Employee shall not retain or cause to be retained any
copies of the foregoing. Employee hereby agrees that all of the foregoing shall
be and remain the property of the Company, as the case may be, and be subject at
all times to their discretion and control.
11. CONSULTING AGREEMENT. Upon the expiration of this Agreement
(notwithstanding Employee's or the Company's notice of renewal), the termination
of Employee's employment without cause during the term of this Agreement or
Employee's termination for Good Reason, Employee shall have the option to enter
into a Consulting Agreement with the Company, in the form of Exhibit C attached
hereto (the "Consulting Agreement"), pursuant to which Employee shall continue
to be an employee of the Company. Upon the execution of the Consulting
Agreement, this Agreement shall automatically terminate (to the extent same has
not expired) and the terms and conditions of the Consulting Agreement shall
supersede this Agreement; provided, however, that the Company's obligations
under Sections 6(d)(i), 6d(ii), 6(e) and 12 shall survive termination in
accordance with their terms.
12. INDEMNIFICATION. In the event Employee is made a party to any
threatened or pending action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (other than an action by the Company against
Employee, and excluding any action by Employee against the Company), by reason
of the fact that he is or was performing services under this Agreement or as an
officer or director of the Company, then, to the fullest extent permitted by
applicable law, the Company shall indemnify Employee against all expenses
(including reasonable attorneys' fees), judgments, fines, and amounts paid in
settlement, as actually and reasonably incurred by Employee in connection
therewith. Such indemnification shall continue as to Employee even if he has
ceased to be an employee, officer, or director of the Company and shall inure to
the benefit of his heirs and estate. The Company shall advance to Employee all
reasonable costs and expenses directly related to the defense of such action,
suit, or proceeding within twenty (20) days after written request therefore by
Employee to the Company, provided, that such request shall include a written
undertaking by Employee, in a form acceptable to the Company, to repay such
advances if it shall ultimately be determined that Employee is or was not
entitled to be indemnified by the Company against such costs and expenses. In
the event that both Employee and the Company are made a party to the same
third-party action, complaint, suit, or proceeding, the Company will engage
competent legal representation, and Employee agrees to use the same
representation; provided, that if counsel selected by the Company shall have a
conflict of interest that prevents such counsel from representing Employee,
Employee may engage separate counsel and the Company shall pay all reasonable
attorneys' fees of such separate counsel. The provisions of this Section 12 are
in addition to, and not in derogation of, the indemnification provisions of the
Company's By-laws. The foregoing indemnification also shall be applicable to
Employee in his capacity as an officer, director, or representative of any
subsidiary of the Company, or any other entity, but in each case only to the
extent that Employee is serving at the request of the Board.
13. NO PRIOR AGREEMENTS. Employee hereby represents and warrants to the
Company that the execution of this Agreement by Employee, his employment by the
Company, and the performance of his duties hereunder will not violate or be a
breach of any agreement with a former employer, client, or any other Person.
Further, Employee agrees to indemnify and hold harmless the Company and its
officers, directors, and representatives for any claim, including, but not
limited to, reasonable attorneys' fees and expenses of investigation, of any
such third party that such third party may now have or may hereafter come to
have against the Company or such other persons, based upon or arising out of any
non-competition agreement, invention, secrecy, or other agreement between
Employee and such third party that was in existence as of the date of this
Agreement. To the extent that Employee had any oral or written employment
agreement or understanding with the Company, this Agreement shall automatically
supersede such agreement or understanding, and upon execution of this Agreement
by Employee and the Company, such prior agreement or understanding automatically
shall be deemed to have been terminated and shall be null and void.
14. ASSIGNMENT; BINDING EFFECT. Employee understands that he has been
selected for employment by the Company on the basis of his personal
qualifications, experience, and skills. Employee agrees, therefore, that he
cannot assign all or any portion of his performance under this Agreement. This
Agreement may not be assigned or transferred by the Company without the prior
written consent of Employee. Subject to the preceding two sentences, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by
the parties hereto and their respective heirs, legal representatives,
successors, and assigns. Notwithstanding the foregoing, if Employee accepts
employment with a subsidiary or affiliate of the Company, unless Employee and
his new employer agree otherwise in writing, this Agreement shall automatically
be deemed to have been assigned to such new employer (which shall thereafter be
an additional or substitute beneficiary of the covenants contained herein, as
appropriate), with the consent of Employee, such assignment shall be considered
a condition of employment by such new employer, and references to the "Company"
in this Agreement shall be deemed to refer to such new employer. If the Company
is merged with or into another entity and the successor company is engaged in
substantially the same business as the Company, such action shall not be
considered to cause an assignment of this Agreement and the surviving or
successor entity shall become the beneficiary of this Agreement and all
references to the "Company" shall be deemed to refer to such surviving or
successor entity. No other person shall be a third-party beneficiary under this
Agreement.
15. COMPLETE AGREEMENT; WAIVER; AMENDMENT. This Agreement is not a
promise of future employment. Employee has no oral representations,
understandings, or agreements with the Company or any of its officers,
directors, or representatives covering the same subject matter as this
Agreement. This Agreement is the final, complete, and exclusive statement and
expression of the agreement between the Company and Employee with respect to the
subject matter hereof and thereof, and cannot be varied, contradicted, or
supplemented by evidence of any prior or contemporaneous oral or written
agreements. This written Agreement may not be later modified except by a further
writing signed by a duly authorized officer of the Company and Employee, and no
term of this Agreement may be waived except by a writing signed by the party
waiving the benefit of such term.
16. NOTICE. Whenever any notice is required hereunder, it shall be
given in writing addressed as follows:
To the Company: Workflow Management, Inc.
000 Xxxxx Xxxx Xxx
Xxxx Xxxxx, XX 00000
Fax: (000) 000-0000
Attn: President
with a copy to: Xxx X. Xxxxx, XX, Esq.
Xxxxxxx & Xxxxxxx
P. O. Xxx 0000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
To Employee: Xxxxx X. Xxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Fax: (000)-000-0000
Notice shall be deemed given and effective three days after the deposit in the
U.S. mail of a writing addressed as above and sent first class mail, certified
return receipt requested, or, if sent by express delivery, hand delivery, or
facsimile, when actually received. Either party may change the address for
notice by notice to the other party of such change in accordance with this
Section 16.
17. SEVERABILITY; HEADINGS. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative. This
severability provision shall be in addition to, and not in place of, the
provisions of Section 7(e) above. The paragraph headings herein are for
reference purposes only and are not intended in any way to describe, interpret,
define or limit the extent or intent of the Agreement or of any part hereof.
18. EQUITABLE REMEDY. Because of the difficulty of measuring economic
losses to the Company as a result of a breach of the restrictive covenants set
forth in Sections 7, 8, 9 and 10, and because of the immediate and irreparable
damage that would be caused to the Company for which monetary damages would not
be a sufficient remedy, it is hereby agreed that in addition to all other
remedies that may be available to the Company at law or in equity, the Company
shall be entitled to specific performance and any injunctive or other equitable
relief as a remedy for any breach or threatened breach of the aforementioned
restrictive covenants.
19. ARBITRATION. Except for actions initiated by the Company to enjoin
a breach by, and/or recover damages from, Employee related to violation of any
of the provisions in paragraphs 7 through 10, which the Company may bring in an
appropriate court of law or equity, any other unresolved dispute or controversy
arising under or in connection with Employee's employment and/or this Agreement
shall be settled or resolved exclusively by arbitration conducted in accordance
with the rules of the American Arbitration Association then in effect. This
includes any and all federal, state and/or local claims based upon statute,
common law and/or local ordinance, including, but not limited to claims under
Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in
Employment Act, the Family and Medical Leave Act, and the Americans with
Disabilities Act. The arbitrator(s) shall not have the authority to add to,
detract from or modify this Agreement except as permitted by the Agreement. The
arbitrator's decision shall be final and binding, and judgment may be entered on
the decision in any court having competent jurisdiction. The direct expense of
the arbitration shall be borne by the Company but each party will bear its own
expenses and legal fees. The arbitration shall be held in any of the following
locations (individually, the "Arbitration Location"): (a) Palm Beach County,
Florida; (b) the City of Norfolk, Virginia; or (c) the city where Employee is or
was last employed by Company. The selection of an Arbitration Location shall be
at the sole and absolute discretion of the Company.
20. EQUITABLE RELIEF: JURISDICTION AND VENUE. Employee acknowledges
that the Company's principal corporate office is in the City of Palm Beach,
Florida. Upon due consideration of any effects created hereby, Employee hereby
irrevocably submits to the jurisdiction and venue of a court of competent civil
jurisdiction sitting in Palm Beach County, Florida, in any action or proceeding
brought by the Company arising out of, or relating to, the provisions in
paragraphs 7 through 10 of this Agreement. Employee hereby irrevocably agrees
that any such action or proceeding may, at the Company's option, be heard and
determined in such court. Employee agrees that a final order or judgment in any
such action or proceeding shall, to the extent permitted by applicable law, be
conclusive and may be enforced in other jurisdictions by suit on the order or
judgment, or in any other manner provided by applicable law related to the
enforcement of judgments.
21. GOVERNING LAW. This Agreement shall in all respects be construed
according to the laws of the State of Florida, without regard to its conflict of
laws principles.
IN WITNESS WHEREOF, the parties hereto have cause this Agreement to be
duly executed as of the date first written above.
WORKFLOW MANAGEMENT, INC.
/s/ Xxxxxx X. X'Xxxxxxxx
----------------------------------
Xxxxxx X. X'Xxxxxxxx
President
EMPLOYEE
/s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
EXHIBIT A
INCENTIVE BONUS PLAN
Under the Company's Incentive Bonus Plan, Employee will be eligible to earn up
to 100% of Employee's base salary in bonus compensation, payable out of a bonus
pool determined by the Board of the Company or a compensation committee thereof,
depending upon the achievement of specified criteria and payable in the form of
cash, stock options, or other non-cash awards, in such proportions, and in such
forms, as are determined by the Board of the Company or a compensation committee
thereof. Bonuses under the Incentive Bonus Plan will be determined by measuring
Employee's performance and the Company's performance based on the following
criteria, weighted as indicated, and measured against target performance levels
established by the Board of Company or such compensation committee: (i) quality
and timeliness of the Company's financial reporting -- 50%; (ii) the growth of
net earnings per share of the Company -- 25%; and (iii) improvement in the
Company's operating margin -- 25%.
EXHIBIT B
Employee shall receive a monthly expense reimbursement to cover living expenses
while Employee lives in Palm Beach, Florida. Such reimbursement shall be an
amount equal to $3000 per month after the payment of taxes by Employee for such
reimbursement.
EXHIBIT C
FORM OF CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, dated as of this ____ day of ____________,
____ is by and between WORKFLOW MANAGEMENT, INC., a Delaware corporation (the
"Company") and XXXXX X. XXXXXX ("Consultant").
RECITALS
Consultant was previously employed by the Company under that certain
Employment Agreement, dated April 1, 1999, pursuant to which Consultant served
as Executive Vice President and Chief Financial Officer of the Company (the
"Employment Agreement").
The Employment Agreement has expired, Consultant was terminated without
cause under such Employment Agreement or Consultant terminated the Employment
Agreement for Good Reason (as such term is defined in the Employment Agreement).
The Company desires to employ Consultant and to have the benefit of his
skills and services, and Consultant desires to be employed by the Company, on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, terms,
covenants and conditions set forth herein, and the performance of each, the
parties hereto, intending legally to be bound, hereby agree as follows:
AGREEMENTS
1. EMPLOYMENT; TERM. The Company hereby employs Consultant to perform
the duties described herein, and Consultant hereby accepts employment with the
Company, for a term beginning on the date hereof and continuing for a period of
(a) five (5) years, if the Employment Agreement expired, or (b) five (5) years
plus the period of time remaining under the Employment Agreement, if Consultant
was terminated without cause or for Good Reason under such Employment Agreement
(the "Term").
2. POSITION AND DUTIES. The Company hereby employs Consultant as a
consultant to provide high level, strategic business advice to the Chief
Executive Officer and Chief Financial Officer of the Company. As such,
Consultant shall have such specific responsibilities, duties and authority as
are agreed upon by the Consultant, Chief Executive Officer and Chief Financial
Officer of the Company. As an employee of the Company, Consultant shall
faithfully adhere to, execute, and fulfill all policies established by the
Company.
3. COMPENSATION. For all services rendered by Consultant, the Company
shall compensate Consultant as follows:
(a) BASE SALARY. Effective on the date hereof, the base salary
payable to Consultant shall be $25,000 per year, payable on a regular basis in
accordance with the Company's standard payroll procedures, but not less often
than monthly. On at least an annual basis, the Chief Executive Officer and Chief
Financial Officer of the Company will review Consultant's performance and may
make increases to such base salary if, in their sole discretion, any such
increase is warranted.
(b) PERQUISITES, BENEFITS, AND OTHER COMPENSATION. During the
Term, Consultant shall be entitled to receive such perquisites and benefits as
are customarily provided to the Company's executive officers, subject to such
changes, additions, or deletions as the Company may make from time to time, as
well as such other perquisites or benefits as may be specified from time to time
by the Board of Directors of the Company ("Board").
(c) TRANSACTION FEES.The Company shall pay to Consultant a
bonus ("Transaction Bonus") equal to (i) 1% of the Gross Sales (as defined
below) of an Acquisition Target (as defined below), and (ii) 1% of the aggregate
consideration paid by a buyer for the sale of any direct or indirect subsidiary,
division or affiliate of the Company (a "Company Sale"), payable in either case
for Consultant's material assistance and transaction analysis at the request of
the Company. "Gross Sales" shall mean the gross sales of an Acquisition Target
as determined in accordance with generally accepted accounting principles
consistently applied for the twelve (12) month period ending on the date that an
Acquisition Target is acquired. The Transaction Bonus shall be payable to
Consultant in cash upon the closing of a Company Sale or the purchase of an
Acquisition Target by the Company or one of its direct or indirect subsidiaries.
The Company shall control all discussions and negotiations with any third party
buyer or Acquisition Target and reserves the right, exercisable in its sole
discretion, to reject any Acquisition Target or any offer from a third party
buyer presented to it, and to terminate discussions, negotiations, letters of
intent or contracts with any such parties, for any reason or no reason.
4. EXPENSE REIMBURSEMENT. The Company shall reimburse Consultant for
(or, at the Company's option, pay) all business travel and other out-of-pocket
expenses reasonably incurred by Consultant in the performance of his services
hereunder during the Term. The Company acknowledges that Consultant may, for all
or a portion of the Term, reside away from the Company's headquarters in Palm
Beach, Florida, and thus, all travel to and from Consultant's principal
residence for business purposes shall be reimbursed. All reimbursable expenses
shall be appropriately documented in reasonable detail by Consultant upon
submission of any request for reimbursement, and in a format and manner
consistent with the Company's expense reporting policy, as well as applicable
federal and state tax record keeping requirements.
5. PLACE OF PERFORMANCE. Consultant shall perform services under this
Agreement at the Company's place of business in either New York, New York or
Palm Beach, Florida.
6. TERMINATION; RIGHTS ON TERMINATION. Consultant's employment may be
terminated in any one of the following ways, prior to the expiration of the
Term:
(a) DEATH. The death of Consultant shall immediately terminate
the Term, and no severance compensation shall be owed to Consultant's estate.
(b) DISABILITY. If, as a result of incapacity due to physical
or mental illness or injury, Consultant shall have been unable to perform the
material duties of his position on a full-time basis for a period of four
consecutive months, or for a total of four months in any six-month period, then
thirty (30) days after written notice to the Consultant (which notice may be
given before or after the end of the aforementioned periods, but which shall not
be effective earlier than the last day of the applicable period), the Company
may terminate Consultant's employment hereunder if Consultant is unable to
resume his duties at the conclusion of such notice period. Subject to Section
6(e) below, if Consultant's employment is terminated as a result of Consultant's
disability, the Company shall continue to pay Consultant his base salary at the
then-current rate for the lesser of (i) six (6) months from the effective date
of termination, or (ii) whatever time period is remaining under the Term. Such
payments shall be made in accordance with the Company's regular payroll cycle.
(c) TERMINATION BY THE COMPANY "FOR CAUSE." The Company may
terminate Consultant's employment hereunder ten (10) days after written notice
to Consultant "for cause," which shall be: (i) Consultant's material breach of
this Agreement, which breach is not cured within ten (10) days of receipt by
Consultant of written notice from the Company specifying the breach; (ii)
Consultant's gross negligence in the performance of his material duties
hereunder, intentional nonperformance or mis-performance of such duties, or
refusal to abide by or comply with the directives of the Board, his superior
officers, or the Company's policies and procedures, which actions continue for a
period of at least ten (10) days after receipt by Consultant of written notice
of the need to cure or cease; (iii) Consultant's willful dishonesty, fraud, or
misconduct with respect to the business or affairs of the Company, and that in
the reasonable judgment of the Company materially and adversely affects the
operations or reputation of the Company; (iv) Consultant's conviction of a
felony or other crime involving moral turpitude; or (v) Consultant's abuse of
alcohol or drugs (legal or illegal) that, in the Company's reasonable judgment,
substantially impairs Consultant's ability to perform his duties hereunder. In
the event of a termination "for cause," as enumerated above, Consultant shall
have no right to any severance compensation.
(d) WITHOUT CAUSE.
(i) The Company may not terminate Consultant's
employment without cause.
(ii) At any time after the commencement of
employment, the Consultant may terminate this Agreement for Good Reason upon
giving the Company thirty (30) days prior written notice. If Consultant
terminates this Agreement for Good Reason, Consultant shall receive from the
Company (A) the base salary at the rate then in effect for the longer of (i) six
(6) months from the date of termination, or (ii) whatever time period is
remaining under the Term, and (B) family health benefits as previously provided
to Consultant for the remainder of the Term. For purposes of this Agreement,
Good Reason shall mean a breach by the Company of any material obligation to
Consultant hereunder, which breach is not cured within thirty (30) days after
written notice thereof is given to the Company by Consultant.
(iii) If Consultant resigns or otherwise terminates
his employment for any reason other than Good Reason as defined herein,
Consultant shall receive no severance compensation.
(e) PAYMENT THROUGH TERMINATION. Upon termination of
Consultant's employment for any reason provided above, Consultant shall be
entitled to receive all compensation earned and all benefits and reimbursements
(including payments for accrued vacation and sick leave, in each case in
accordance with applicable policies of the Company) due through the effective
date of termination. Additional compensation subsequent to termination, if any,
will be due and payable to Consultant only to the extent and in the manner
expressly provided above in this Section 6. All other rights and obligations of
the Company and Consultant under this Agreement shall cease as of the effective
date of termination, except that the Company's obligations under this Section
6(e) and Section 11 below and Consultant's obligations under Sections 7, 8, 9
and 10 below shall survive such termination in accordance with their terms.
7. RESTRICTION ON COMPETITION.
(a) During the Term, and thereafter, if Consultant continues
to be employed by the Company and/or any other entity owned by or affiliated
with the Company on an "at will" basis, for the duration of such period, and
thereafter for a period equal to the longer of (x) one (1) year, or (y) the
period during which Consultant is receiving any severance pay from the Company,
Consultant shall not, directly or indirectly, for himself or on behalf of or in
conjunction with any other person, company, partnership, corporation, business,
group, or other entity (each, a "Person"):
(i) engage, in a competitive capacity, whether as an
owner, officer, director, partner, shareholder, joint venturer, employee,
independent contractor, consultant, advisor, or sales representative, in any
business selling any products or services which were sold by the Company on the
date of the termination of Consultant's employment, within 50 miles of any
location where the Company both has an office and conducts business on the date
of the termination of Consultant's employment;
(ii) call upon any Person who is, at that time, a
sales, supervisory, or management employee of the Company for the purpose or
with the intent of enticing such employee away from or out of the employ of the
Company;
(iii) call upon any Person who or that is, at that
time, or has been, within one year prior to that time, a customer of the Company
for the purpose of soliciting or selling products or services in direct
competition with the Company; or
(iv) on Consultant's own behalf or on behalf of any
competitor, call upon any Person who or that, during Consultant's employment by
the Company, was either called upon by the Company as a prospective acquisition
candidate with respect to which Consultant had actual knowledge or was the
subject of an acquisition analysis conducted by the Company with respect to
which Consultant had actual knowledge.
(b) The foregoing covenants shall not be deemed to prohibit
Consultant from acquiring as an investment not more than one percent (1%) of the
capital stock of a competing business, whose stock is traded on a national
securities exchange or through the automated quotation system of a registered
securities association.
(c) It is further agreed that, in the event that Consultant
shall cease to be employed by the Company and enters into a business or pursues
other activities that, on the date of termination of Consultant's employment,
are not in competition with the Company, Consultant shall not be chargeable with
a violation of this Section 7 if the Company subsequently enters the same (or a
similar) competitive business or activity or commences competitive operations
within 50 miles of the Consultant's new business or activities. In addition, if
Consultant has no actual knowledge that his actions violate the terms of this
Section 7, Consultant shall not be deemed to have breached the restrictive
covenants contained herein if, promptly after being notified by the Company of
such breach, Consultant ceases the prohibited actions.
(d) For purposes of this Section 7, references to "Company"
shall mean Workflow Management, Inc., together with its subsidiaries and
affiliates. For the purposes of this Agreement, "affiliate" shall mean any
entity 25% or more of the stock or voting interests of which is owned or
controlled directly or indirectly, by the Company or any subsidiary of the
Company. The Company and Consultant agree that for purposes of this Section 7,
the Company's business shall be deemed to include those businesses of the
Company described in the Company's Annual Report on Form 10-K as filed by the
Company with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934.
(e) The covenants in this Section 7 are severable and
separate, and the unenforceability of any specific covenant shall not affect the
provisions of any other covenant. If any provision of this Section 7 relating to
the time period or geographic area of the restrictive covenants shall be
declared by a court of competent jurisdiction to exceed the maximum time period
or geographic area, as applicable, that such court deems reasonable and
enforceable, said time period or geographic area shall be deemed to be, and
thereafter shall become, the maximum time period or largest geographic area that
such court deems reasonable and enforceable and this Agreement shall
automatically be considered to have been amended and revised to reflect such
determination.
(f) All of the covenants in this Section 7 shall be construed
as an agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Consultant against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of such covenants; provided, that upon
the failure of the Company to make any payments required under this Agreement,
the Consultant may, upon thirty (30) days' prior written notice to the Company,
waive his right to receive any additional compensation pursuant to this
Agreement and engage in any activity prohibited by the covenants of this Section
7. It is specifically agreed that the period of one year stated at the beginning
of this Section 7, during which the agreements and covenants of Consultant made
in this Section 7 shall be effective, shall be computed by excluding from such
computation any time during which Consultant is in violation of any provision of
this Section 7.
(g) If the time period specified by this Section 7 shall be
reduced by law or court decision, then, notwithstanding the provisions of
Section 6 above, Consultant shall be entitled to receive from the Company his
base salary at the rate in effect on the date of termination of Consultant's
employment solely for the longer of (i) the time period during which the
provisions of this Section 7 shall be enforceable under the provisions of such
applicable law, or (ii) the time period during which Consultant is not engaging
in any competitive activity, but in no event longer than the applicable period
provided in Section 6 above.
(h) Consultant has carefully read and considered the
provisions of this Section 7 and, having done so, agrees that the restrictive
covenants in this Section 7 impose a fair and reasonable restraint on Consultant
and are reasonably required to protect the interests of the Company, and its
respective officers, directors, employees, and stockholders. It is further
agreed that the Company and Consultant intend that such covenants be construed
and enforced in accordance with the changing activities, business, and locations
of the Company throughout the term of these covenants.
(i) Notwithstanding any of the foregoing, if the Company
terminates Consultant's employment pursuant to Section 6(b) or Section 6(d),
then the restrictions on Consultant described in this Section 7 shall only apply
for the period during which Consultant is receiving any severance pay from the
Company. The parties expressly agree that Consultant shall have the right to
receive, but not the obligation to accept, severance compensation for a
termination under either Section 6(b) or Section 6(d).
8. CONFIDENTIAL INFORMATION. Consultant hereby agrees to hold in strict
confidence and not to disclose to any third party any of the valuable,
confidential, and proprietary business, financial, technical, economic, sales,
and/or other types of proprietary business information relating to the Company
(including all trade secrets), in whatever form, whether oral, written, or
electronic (collectively, the "Confidential Information"), to which Consultant
has, or is given (or has had or been given), access as a result of his
employment by the Company. It is agreed that the Confidential Information is
confidential and proprietary to the Company because such Confidential
Information encompasses technical know-how, trade secrets, or technical,
financial, organizational, sales, or other valuable aspects of the Company's
business and trade, including, without limitation, technologies, products,
processes, plans, clients, personnel, operations, and business activities. This
restriction shall not apply to any Confidential Information that (a) becomes
known generally to the public through no fault of the Consultant; (b) is
required by applicable law, legal process, or any order or mandate of a court or
other governmental authority to be disclosed; or (c) is reasonably believed by
Consultant, based upon the advice of legal counsel, to be required to be
disclosed in defense of a lawsuit or other legal or administrative action
brought against Consultant; provided, that in the case of clauses (b) or (c),
Consultant shall give the Company reasonable advance written notice of the
Confidential Information intended to be disclosed and the reasons and
circumstances surrounding such disclosure, in order to permit the Company to
seek a protective order or other appropriate request for confidential treatment
of the applicable Confidential Information.
9. INVENTIONS. Consultant shall disclose promptly to the Company any
and all significant conceptions and ideas for inventions, improvements, and
valuable discoveries, whether patentable or not, that are conceived or made by
Consultant, solely or jointly with another, during the period of employment or
within one year thereafter, and that are directly related to the business or
activities of the Company and that Consultant conceives as a result of his
employment by the Company, regardless of whether or not such ideas, inventions,
or improvements qualify as "works for hire." Consultant hereby assigns and
agrees to assign all his interests therein to the Company or its nominee.
Whenever requested to do so by the Company, Consultant shall execute any and all
applications, assignments, or other instruments that the Company shall deem
necessary to apply for and obtain Letters Patent of the United States or any
foreign country or to otherwise protect the Company's interest therein.
10. RETURN OF COMPANY PROPERTY. Promptly upon termination of
Consultant's employment by the Company for any reason or no reason, Consultant
or Consultant's personal representative shall return to the Company (a) all
Confidential Information; (b) all other records, designs, patents, business
plans, financial statements, manuals, memoranda, lists, correspondence, reports,
records, charts, advertising materials, and other data or property delivered to
or compiled by Consultant by or on behalf of the Company or its representatives,
vendors, or customers that pertain to the business of the Company, whether in
paper, electronic, or other form; and (c) all keys, credit cards, vehicles, and
other property of the Company. Consultant shall not retain or cause to be
retained any copies of the foregoing. Consultant hereby agrees that all of the
foregoing shall be and remain the property of the Company, as the case may be,
and be subject at all times to their discretion and control.
11. INDEMNIFICATION. In the event Consultant is made a party to any
threatened or pending action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (other than an action by the Company against
Consultant, and excluding any action by Consultant against the Company), by
reason of the fact that he is or was performing services under this Agreement or
as an officer or director of the Company, then, to the fullest extent permitted
by applicable law, the Company shall indemnify Consultant against all expenses
(including reasonable attorneys' fees), judgments, fines, and amounts paid in
settlement, as actually and reasonably incurred by Consultant in connection
therewith. Such indemnification shall continue as to Consultant even if he has
ceased to be an employee, officer, or director of the Company and shall inure to
the benefit of his heirs and estate. The Company shall advance to Consultant all
reasonable costs and expenses directly related to the defense of such action,
suit, or proceeding within twenty (20) days after written request therefore by
Consultant to the Company, provided, that such request shall include a written
undertaking by Consultant, in a form acceptable to the Company, to repay such
advances if it shall ultimately be determined that Consultant is or was not
entitled to be indemnified by the Company against such costs and expenses. In
the event that both Consultant and the Company are made a party to the same
third-party action, complaint, suit, or proceeding, the Company will engage
competent legal representation, and Consultant agrees to use the same
representation; provided that if counsel selected by the Company shall have a
conflict of interest that prevents such counsel from representing Consultant,
Consultant may engage separate counsel and the Company shall pay all reasonable
attorneys' fees of such separate counsel. The provisions of this Section 11 are
in addition to, and not in derogation of, the indemnification provisions of the
Company's Certificate of Incorporation and By-laws. The foregoing
indemnification also shall be applicable to Consultant in his capacity as an
officer, director, or representative of any subsidiary of the Company, or any
other entity, but in each case only to the extent that Consultant is serving at
the request of the Board.
12. NO PRIOR AGREEMENTS. Consultant hereby represents and warrants to
the Company that the execution of this Agreement by Consultant, his employment
by the Company, and the performance of his duties hereunder will not violate or
be a breach of any agreement with a former employer, client, or any other
Person. Further, Consultant agrees to indemnify and hold harmless the Company
and its officers, directors, and representatives for any claim, including, but
not limited to, reasonable attorneys' fees and expenses of investigation, of any
such third party that such third party may now have or may hereafter come to
have against the Company or such other persons, based upon or arising out of any
non-competition agreement, invention, secrecy, or other agreement between
Consultant and such third party that was in existence as of the date of this
Agreement. To the extent that Consultant had any oral or written employment
agreement or understanding with the Company, this Agreement shall automatically
supersede such agreement or understanding, and upon execution of this Agreement
by Consultant and the Company, such prior agreement or understanding
automatically shall be deemed to have been terminated and shall be null and
void.
13. ASSIGNMENT; BINDING EFFECT. Consultant understands that he has been
selected for employment by the Company on the basis of his personal
qualifications, experience, and skills. Consultant agrees, therefore, that he
cannot assign all or any portion of his performance under this Agreement. This
Agreement may not be assigned or transferred by the Company without the prior
written consent of Consultant. Subject to the preceding two sentences, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by
the parties hereto and their respective heirs, legal representatives,
successors, and assigns. Notwithstanding the foregoing, if Consultant accepts
employment with a subsidiary or affiliate of the Company, unless Consultant and
his new employer agree otherwise in writing, this Agreement shall automatically
be deemed to have been assigned to such new employer (which shall thereafter be
an additional or substitute beneficiary of the covenants contained herein, as
appropriate), with the consent of Consultant, such assignment shall be
considered a condition of employment by such new employer, and references to the
"Company" in this Agreement shall be deemed to refer to such new employer. If
the Company is merged with or into another entity and the successor company is
engaged in substantially the same business as the Company, such action shall not
be considered to cause an assignment of this Agreement and the surviving or
successor entity shall become the beneficiary of this Agreement and all
references to the "Company" shall be deemed to refer to such surviving or
successor entity. No other Person shall be a third-party beneficiary under this
Agreement.
14. COMPLETE AGREEMENT; WAIVER; AMENDMENT. This Agreement is not a
promise of future employment. Consultant has no oral representations,
understandings, or agreements with the Company or any of its officers,
directors, or representatives covering the same subject matter as this
Agreement. This Agreement is the final, complete, and exclusive statement and
expression of the agreement between the Company and Consultant with respect to
the subject matter hereof and thereof, and cannot be varied, contradicted, or
supplemented by evidence of any prior or contemporaneous oral or written
agreements. This written Agreement may not be later modified except by a further
writing signed by a duly authorized officer of the Company and Consultant, and
no term of this Agreement may be waived except by a writing signed by the party
waiving the benefit of such term.
15. NOTICE. Whenever any notice is required hereunder, it shall be
given in writing addressed as follows:
To the Company: Workflow Management, Inc.
000 Xxxxx Xxxx Xxx
Xxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx,
Vice President and General Counsel
Fax: (000) 000-0000
with a copy to: Xxx X. Xxxxx, XX, Esq. and
T. Xxxxxxx Xxxxxx, Xx., Esq.
Xxxxxxx & Xxxxxxx
P. O. Xxx 0000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
To Consultant: Xxxxx X. Xxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Fax: (000)-000-0000
Notice shall be deemed given and effective three days after the deposit in the
U.S. mail of a writing addressed as above and sent first class mail, certified
return receipt requested, or, if sent by express delivery, hand delivery, or
facsimile, when actually received. Either party may change the address for
notice by notice to the other party of such change in accordance with this
Section 15.
16. SEVERABILITY; HEADINGS. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative. This
severability provision shall be in addition to, and not in place of, the
provisions of Section 7(e) above. The paragraph headings herein are for
reference purposes only and are not intended in any way to describe, interpret,
define or limit the extent or intent of the Agreement or of any part hereof.
17. EQUITABLE REMEDY. Because of the difficulty of measuring economic
losses to the Company as a result of a breach of the restrictive covenants set
forth in Sections 7, 8, 9 and 10, and because of the immediate and irreparable
damage that would be caused to the Company for which monetary damages would not
be a sufficient remedy, it is hereby agreed that in addition to all other
remedies that may be available to the Company at law or in equity, the Company
shall be entitled to specific performance and any injunctive or other equitable
relief as a remedy for any breach or threatened breach of the aforementioned
restrictive covenants.
18. ARBITRATION. Except for actions initiated by the Company to enjoin
a breach by, and/or recover damages from, Consultant related to violation of any
of the provisions of Section 7 though 10, which the Company may bring in an
appropriate court of law or equity, any other unresolved dispute or controversy
arising under or in connection with this Agreement or Consultant's employment,
including, but not limited to claims under Title VII of the Civil Rights Act of
1964, The Age Discrimination in Employment Act, The Americans With Disabilities
Act, or any other local, state or federal law related to employment
discrimination, shall be settled exclusively by arbitration conducted in
accordance with the rules of the American Arbitration Association then in
effect. The arbitrators shall not have the authority to add to, detract from, or
modify any provision hereof nor to award punitive damages to any injured party.
A decision by a majority of the arbitration panel shall be final and binding.
Judgment may be entered on the arbitrators' award in any court having
jurisdiction. The direct expense of any arbitration proceeding shall be borne by
the Company. Each party shall bear its own counsel fees. The arbitration
proceeding shall be held, at the option of the Company, in either Palm Beach,
Florida or New York, New York.
19. EQUITABLE RELIEF; JURISDICTION AND VENUE. Upon due consideration of
any effects created hereby, Consultant hereby irrevocably submits to the
jurisdiction and venue of a court of competent civil jurisdiction sitting in
Palm Beach, Florida in any action or proceeding brought by the Company arising
out of, or relating to, the provisions in Sections 7 through 10 of this
Agreement. Consultant hereby irrevocably agrees that any such action or
proceeding may, at the Company's option, be heard and determined in such court.
Consultant agrees that a final order or judgment in any such action or
proceeding shall, to the extent permitted by applicable law, be conclusive and
may be enforced in other jurisdictions by suit on the order or judgment, or in
any other manner provided by applicable law related to the enforcement of
judgments.
20. GOVERNING LAW. This Agreement shall in all respects be construed
according to the laws of the State of Florida, without regard to its conflict of
laws principles.
IN WITNESS WHEREOF, the parties hereto have cause this Agreement to be
duly executed as of the date first written above.
WORKFLOW MANAGEMENT, INC.
By: _____________________________
Name: ___________________________
Title: __________________________
CONSULTANT
_________________________________
Xxxxx X. Xxxxxx
