12
EXHIBIT 10.94
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") made as of September 2, 1997 by and
between Tropic Communications, Inc., a Delaware corporation (the "Company") and
Xxxxx Xxxxxxxxxx (the "Executive").
WITNESSETH:
WHEREAS, the parties hereto desire to provide for the employment of the
Executive by the Company as an executive officer of the Company upon the terms
set forth herein; and
WHEREAS, the Executive is prepared to accept such employment, upon the
terms and conditions hereinafter described.
NOW THEREFORE, in consideration of the premises and mutual promises and
agreements hereinafter set forth, it is agreed as follows:
1. Effectiveness of this Agreement. This Agreement shall become effective on the
date first written above.
2. Employment and Duties. (a) Executive shall serve as Executive Vice-President
and General Counsel of the Company and shall serve as an executive officer of
each of the Company's wholly-owned subsidiaries and affiliates as such offices
and duties may be delegated to him from time to time by the Company's Board of
Directors, for a term commencing on the effective date of this Agreement and
expiring on the date set forth in paragraph 7 of this Agreement. The Executive
agrees to serve the Company faithfully and to the best of his ability and to
perform such services and duties of an executive nature in connection with the
business, affairs and operations of the Company and any subsidiary of the
Company as may be reasonably and in good faith assigned or delegated to him from
time to time by or under the authority of the Board of Directors of the Company
and consistent with the positions of Executive Vice-President and General
Counsel, and to use his best efforts in the promotion and advancement of the
Company and its subsidiaries and their welfare and business. Executive shall
perform his duties hereunder, to the extent as, is or may be reasonably
necessary in connection therewith, at the Company's corporate headquarters;
provided, however, that the Company acknowledges that Executive's physical
presence at the Company's headquarters on a daily basis throughout the term of
this Agreement is not necessarily required, having due regard to the ability of
Executive to adequately interact with the Company's other employees by
telephone, facsimile and computer. Executive's employment with the Company shall
be Executive's primary employment during the term of this Agreement. As long as
he is current in the performance of his duties, Executive may also engage in
other business activities unrelated to his positions with the Company, provided
that such other activities do not interfere with the satisfactory performance of
his obligations hereunder and the Company and Executive agree that Executive
shall devote such time to his duties as, in his sole discretion, he deems
necessary to adequately discharge such responsibilities under this Agreement and
do not violate the terms and conditions of Paragraph 8 hereof.
(b) During the term of employment, Executive shall be nominated by the
management of the Company for election as a director of the Company at each
meeting of shareholders at which his term of office as a director shall expire.
In addition, at his request, the Company shall have Executive elected to the
Board of Directors of each of its subsidiaries.
3. Compensation. (a) Base Salary. The Company shall pay to Executive during the
term of this Agreement a salary (the "Base Salary") of $85,000 per year, which
shall be payable in cash to Executive not less frequently than once monthly, in
advance, in accordance with the current payment policies of the Company. The
Base Salary shall be increased effective as of January 1, 1998, and annually as
of each January 1 thereafter by a minimum annual adjustment as set forth herein.
To determine the Minimum Adjustment, the Base Salary shall be multiplied by a
fraction, the numerator of which shall be the United States Department of Labor,
Bureau of Labor Statistics' Consumer Price Index for Urban Wage Earners and
Clerical Workers, U.S. City Average, All Items (1967=100) (the "Index") for the
month of December of the immediately preceding year, and the denominator of
which shall be the Index for the month of December, of the next preceding year,
provided however, that the fraction multiplied to determine the Adjustment shall
not be less than ten percent (10%) for any Adjustment. Notwithstanding the
foregoing, the Board of Directors, may in its discretion at any time, increase
the amount of the Base Salary payable hereunder. The Base Salary, once
increased, may not thereafter be reduced without the prior written consent of
Executive.
(b) Incentive Compensation. The Company shall pay to Executive during the term
of this Agreement incentive compensation ("Incentive Compensation") in an amount
equal to the excess of an amount equal to ten (10.00%) percent of one (1.00%)
percent of the Company's annual gross revenue ("Annual Gross Revenue" as
hereinafter defined) minus an amount equal to the total Base Salary for the year
paid to the Company's President and to the Company's Vice-President. The
Incentive Compensation shall be paid to Executive no later than two and one-half
months after the end of the fiscal year for which it is payable, or three days
after the audited results for the Company for such year becomes available,
whichever is later. In the event the Board of Directors of the Company
determines at any time during such year that all or any part of the Incentive
Compensation with respect to such year has been earned, the Board of Directors
in its sole discretion may pay all or part of such Incentive Compensation prior
to the time the Incentive Compensation is due hereunder.
(c) Definition of Annual Gross Revenue. Annual Gross Revenue shall mean the
consolidated sales and revenues of the Company and each of its wholly-owned
subsidiaries as reported to the Securities and Exchange Commission in the
Company's annual audited financial statements determined using generally
accepted accounting principles consistently applied.
(d) Deferred Compensation. Notwithstanding the payment provisions of Paragraphs
3(a) and 3(b) of this Agreement, Executive may elect to defer to a later taxable
year designated by him the receipt of all or any portion of his compensation
payable hereunder. The terms of any such deferral or deferrals shall be mutually
agreed upon by Executive and the Company at the time of an election.
4. Insurance Benefits. (a) Medical Insurance. During the term of this Agreement,
the Company shall provide to Executive and his dependents (at no expense to
Executive) insurance coverage suitable to Executive for hospitalization and
major medical, medical reimbursement, dental, and with respect to Executive,
long-term disability insurance or the cash equivalent of such. To the extent
such coverage is not provided by the types of insurance previously specified,
Executive shall be eligible, upon the same terms and conditions as any other
employee of the Company to be covered by or otherwise participate in any other
insurance plans maintained by the Company for the benefit of its employees.
(b) Permanent Disability. In the event of termination of Executive's employment
due to Permanent Disability (as hereinafter defined), the Company shall
thereafter pay the Executive 75% of his then effective Base Salary for the
balance of the stated term of this Agreement. In addition, Executive shall be
entitled to (i) a pro rata portion of the Incentive Compensation payable
pursuant to Paragraph 3(b) of this Agreement for the fiscal year in which such
termination occurs on the basis of the elapsed time (in full months) during such
year that Executive was employed prior to the date of termination, (ii)
reimbursement of expenses properly incurred prior to the date of termination (as
contemplated by Paragraph 7 of this Agreement) and (iii) accrued vacation pay
and pension, if any. "Permanent Disability" for purposes hereof shall be deemed
to exist if, in the judgment of a physician licensed to practice in the state of
Executive's residence who is satisfactory to Executive, Executive will be
unable, due to mental or physical incapacity, disease or injury, to perform the
duties of his office for a period of not less than six months. In the event of a
termination due to Permanent Disability, the Company shall also continue to
include Executive and his family in its group hospitalization, major medical and
life insurance plans (if any) until the end of the stated term, with the expense
thereof to be borne by the Company. The Company's obligation hereunder shall be
reduced by the amount of disability income insurance proceeds paid to Executive
under any of the Company's employee benefit plans. The Company's obligation
hereunder shall be reduced by the amount of disability income insurance proceeds
paid to Executive under any of the Company's employee benefit plans.
(c) Life Insurance. (i) The Company shall provide Executive with life insurance
on the life of the Executive in the principal amount of $500,000 during the term
of this Agreement, and pay all premiums with respect to such insurance. The
Company shall pay additional compensation to the Executive to hold him harmless
from any income taxes he may owe as a result of the premiums paid by the Company
with respect to such insurance and as a result of such additional compensation.
(ii) Upon termination of his employment hereunder, the Company shall be required
to transfer and assign to Executive any policy of life and/or disability
insurance then owned by the Company in respect of Executive. (iii) In the event
the Board of Directors determines to acquire "key man" insurance on the life of
Executive, Executive shall cooperate with the Company in obtaining such
insurance.
5. Executive Benefits. (a) Vacation. During the term of this Agreement,
Executive shall be entitled to paid vacations of one month in each calendar year
during the term of employment. Vacation periods need not be consecutive and
shall carry over to the following calendar years to the extent unused. Vacation
periods remaining unused at the date of Termination shall be paid to Executive
in cash without reduction at the Base Salary rate in effect as of the date of
Termination.
(b) Sick Leave. Executive shall be entitled to sick leave rights in accordance
with the sick leave policy of the Company.
(c) Parking. The Company, upon receipt of adequate documentation, shall directly
pay or reimburse Executive for his parking expenses.
(d) Office. During the term of this Agreement, the Company shall provide
Executive with a suitable office and furnishings required in the performance of
his duties, a Company cellular telephone, a personal lap top computer configured
for maximum utility, and a service account with a data and e-mail service
provider.
(e) Business Expenses. During the term of this Agreement, the Company authorizes
Executive to incur such expenses as are appropriate for the reasonable and
proper conduct of the Company's business, and the Company shall reimburse him no
less frequently than monthly for such expenses upon submission of a reasonably
detailed accounting thereof, with appropriate substantiation and shall provide
to Executive customary corporate credit and charge cards to permit direct
payment thereof by the Company.
(f) Automobile. The Company shall provide Executive with an automobile allowance
of $300 per month during the term of this Agreement, and the Company shall
reimburse Executive for the insurance, repair, gas, maintenance and mobile
telephone expense associated with Executive's automobile. In lieu hereof, the
Company may elect to provide Executive for reimbursement of the business use of
his personal automobile at the maximum rate per mile as set forth in the
Internal Revenue Code of 1986 as amended and the rules and regulations
promulgated thereunder (the "Code").
(g) Other Benefit Plans. In addition to, but not in limitation of the foregoing
benefits, Executive shall be eligible upon the same terms and conditions as any
other common-law employee to participate in any employee welfare, pension,
stock, or other benefit plan maintained on or after the date of this Agreement
for the benefit of the Company's employee's. Benefits for Executive under such
plans shall be at least as great as those offered to any other employee of the
Company and its subsidiaries.
6. Issuance of Stock Options; Additional Stock Options; Loans for Exercise of
Options; Registration Rights. (a) Executive shall qualify for participation in
all of the Company's stock option plans and may receive grants of stock options
from time to time. The Company shall pay additional compensation to the
Executive to hold him harmless from any income or other taxes he may owe as a
result of the grant of any options pursuant to this Agreement.
(b) With respect to shares of Common Stock of the Company which may be acquired
by Executive at any time after January 1, 1998 pursuant to any options which may
be held by Executive, the Company agrees that, to the extent permitted by law,
the Company will lend or cause to be lent to Executive, at Executive's request,
funds sufficient to enable him to pay the exercise price of such options from
time to time up to the total number of shares covered by said options, so long
as Executive is an employee of the Company or any of its subsidiaries at the
time a request for any such loan is made. Such loan shall bear interest at the
minimum applicable federal rate such that imputed interest will not result, and
will be due 36 months after the loan is made, unless Executive is terminated for
Cause or voluntarily terminates his employment prior to the end of the term of
employment, in which case the loan will be due 12 months following the date of
termination. In addition, any such loan shall be secured by shares of Common
Stock owned by Executive the fair market value of which shall at any time be not
less than 100% of the outstanding principal amount of, and accrued but unpaid
interest on, such loan.
(c) Subject to any contract or agreement to which the Company may be a party
with an underwriter of the common stock of the Company pursuant to which the
Company is required to withhold or delay the filing of any registration
statement relating to shares of common stock issuable pursuant to any option
plan of the Company and upon the request of Executive, the Company shall file at
the sole expense of the Company and as promptly as practicable following the
date of Executive's request, a registration statement with the Securities and
Exchange Commission on Form S-8 (or other then applicable form), registering the
shares of the Company's common stock issuable to Executive upon exercise of the
Option and any other options granted to the Executive, together with (if
required to enable the Executive to resell any such shares publicly) a selling
shareholder prospectus in conformity with Form S-3 (or any then applicable
form). The Company covenants and agrees to file all necessary amendments to such
registration statement and to keep same current during the full option exercise
term, at its sole cost and expense.
7. Term and Termination. (a) Term and Renewals. The term of this Agreement shall
be until December 31, 2002, unless earlier terminated for cause as provided
herein. Executive's employment under this Agreement and this Agreement shall
continue thereafter for one five-year term without any further action by the
parties hereto unless terminated by written notice of either party given to the
other no less than sixty (60) days prior to the end of the then current term.
(b) Subject to the performance of the covenants and agreements made by the
Company herein, Executive will perform his duties during the term of this
Agreement in good faith and will observe faithfully the covenants and agreements
made by him herein. Executive shall not be discharged during the term of this
Agreement unless Executive's termination is for (i) Cause (defined to be either
(A) the conviction of Executive for, or Executive pleads nolo contendere to, any
crime or offense involving monies or property of the Company or (B) a violation
of the provisions of Paragraph 8 hereof, subject to the provisions of Paragraph
8(d) thereof), or Permanent Disability as provided in Paragraph 4(b) hereof. The
discharge of Executive for reasons other than those specified in the preceding
sentence shall be deemed to be a discharge without justifiable reason. No breach
or default by Executive shall be deemed to have occurred unless written notice
thereof shall have been given by the Company to Executive and Executive shall
have failed to cure the breach or default within thirty (30) days after he
receives the written notice. If the employment of Executive is terminated by the
Company for Cause, the Company shall have no obligation to Executive except any
Base Salary earned to the date of termination, a pro rata portion of the
Incentive Compensation payable pursuant to Paragraph 3 of this Agreement for the
fiscal year in which such termination occurs on the basis of the elapsed time
(in full months) during such year that Executive was employed prior to the date
of termination, reimbursement of expenses properly incurred prior to such date
and accrued vacation pay, other employee benefits and pension, if any. If the
employment of Executive is terminated as a result of a Permanent Disability, the
provisions of Paragraph 4(b) shall apply.
(c) Termination for Good Reason. Executive shall be entitled to terminate his
employment for good reason. Any termination by Executive of his employment under
the following circumstances shall be deemed to be for good reason and shall be
deemed to be a breach of this Agreement by the Company:
(i) Any material breach of this Agreement by the Company, including but not
limited to any attempt by the Company to terminate the employment of Executive
for any reason other than as set forth in Paragraph (b) of this paragraph or if,
without his express written consent, Executive is assigned duties inconsistent
with his positions, duties, responsibilities, or status with the Company and its
subsidiaries in effect as of the date of this Agreement, or if his reporting
responsibilities, title or offices as in effect immediately prior to the date of
this Agreement are changed, or if Executive is removed from or not re-elected to
any of such positions, except in connection with the termination of his
employment pursuant to Paragraph (b) of this paragraph, or as a result of his
death or substantial disability;
(ii)If the Base Salary, in effect as of the date of this Agreement and as
the same may be increased from time to time pursuant to this Agreement, is
reduced, or if the Company fails to increase the Base Salary in accordance this
Agreement;
(iii) If the Company reduces in amount or scope, or fails to continue to
provide to Executive or his beneficiaries any or all of the benefits described
in this Agreement;
(iv)If the Company's principal executive offices are moved to a location
outside the United States, or if the Company requires Executive without his
agreement to be based anywhere other than the Company's principal executive
offices except for required travel on business of the Company to an extent
substantially consistent with his business travel obligations in effect
immediately prior to the date of this Agreement; or
(v) If, without the prior written consent of Executive, at any time after
the date hereof, any of the following occurs:
(A) The acquisition, other than from the Company, by any individual,
entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), of 30% or more
of either the then outstanding shares of Common Stock of the Company (the
"Outstanding Company Common Stock") or the combined voting power of the then
outstanding voting securities of the Company having general voting power in
electing the Board of Directors of the Company (the "Outstanding Company voting
Securities"); or
(B) Individuals who, as of the date hereof, constitute the Board of
Directors of the Company (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board of Directors, provided, however,
that any individual becoming a director subsequent to the date hereof whose
election, or nomination for election, by the Company's stockholders was approved
by a vote of at least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual was a member of the
Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office is in connection with an actual or threatened
election contest relating to the election of the Directors of the Company (as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act); or
(C) Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company, or of the sale or other disposition
of all or substantially all of the assets of the Company, or of a
reorganization, merger or consolidation with respect to which all or
substantially all of the individuals and entities who were the respective
beneficial owners of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such reorganization, merger or
consolidation do not, immediately following such reorganization, merger or
consolidation, beneficially own, directly or indirectly, more than 30% of,
respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors of the corporation resulting from such
reorganization, merger or consolidation, as the case may be; or
(D) Executive is not nominated for a directorship of the Company or, if
requested, of any subsidiary; or, if nominated, he is not elected by the
stockholders; or if there appears to either Executive or the Company to be a
clear and reasonable probability (judging, among other things, by proxy returns,
competitive proxy solicitations, or adverse vote campaigns), that Executive may
not be so elected.
(d) Executive's Remedies for Breach. If any of the events specified in Paragraph
(c) of this Paragraph 7 occur or if the Company shall fail to observe or perform
any covenant or agreement in this Agreement, Executive may, by written notice to
the Company, elect to treat such breach as a termination without Cause within
the meaning of this Agreement and terminate his employment as an officer and
director of the Company and all subsidiaries. In the event of a termination
without Cause, all obligations of Executive hereunder shall terminate, and
Executive shall be entitled to the following:
(i) Executive may elect, in his sole discretion, to receive either of the
following (A), (B) or (C) (the "Severance Compensation"):
(A) Continue to receive all compensation and benefits provided by this
Agreement as if he had continued to be employed hereunder for the full remaining
term of employment (without any duty to mitigate damages).
(B) Receive, in lieu of all such compensation and benefits, within ten
business days after the date of termination, an amount equal to the sum of (x)
and (y) below:
(x) all accrued but unpaid Base Salary, Incentive Compensation and
other compensation or other amounts due to Executive under this Agreement as of
the date of termination; plus
(y) the discounted present value of all remaining Base Salary and
Incentive Compensation to which Executive would be entitled under this Agreement
for all years remaining under the Agreement. "Base Salary" for purposes of this
subparagraph shall be deemed the annual Base Salary rate in effect at the time
of the discharge, increased by 10% on each successive January 1. "Incentive
Compensation" for purposes of this subparagraph shall mean, for each remaining
year under the Agreement, an amount equal to 50% of the Base Salary payable to
Executive for such year. The discounted present value for the remaining term of
the Agreement shall be determined using an interest rate equal to the most
recent federal rate published by the Internal Revenue Service for imputing
interest, and shall be applied to a period of time equal to the period between
the date of termination and the expiration date of the stated term of
employment.
(C) Receive in lieu of amounts payable under either (A) or (B), within
ten business days after the date of termination, an amount equal to ten times an
amount equal to the Executives Base Salary and Incentive Compensation in respect
of the last full year Executive was employed under this Agreement.
(ii)All indebtedness of Executive to the Company then outstanding, if any,
shall thereupon be forgiven.
(iii) The group major medical, hospitalization, disability income insurance
and life insurance coverage provided to Executive and his family at the time of
termination shall be provided for the remainder of the stated term of the
Agreement with the cost thereof to be borne by the Company.
(iv)All stock options, including but not limited to the Option granted
pursuant to Paragraph 6 of this Agreement, which were not exercisable at the
time of termination of employment shall thereupon become exercisable in full at
any time during the remaining term of the respective option.
(e) In the event of termination of employment due to death, such termination
shall not result in the loss of any rights which the Executive may have as an
employee of the Company or any subsidiary at time of his death pursuant to any
insurance or other death benefit plans or arrangements of the Company or any
subsidiary or pursuant to any employee benefit plans of the Company or
subsidiary or pursuant to any options or rights to acquire shares of Common
Stock of the Company (except to the extent that such loss of rights arises under
the terms of the instruments governing such plans or arrangements).
(f) In the event any portion of this Paragraph 7 is held to be contrary to law
or to subject Executive to liability in any way, that portion of the Agreement
shall become null and void and all other portions hereof shall remain in full
force and effect.
8. Restrictive Covenants. Executive covenants and agrees that:
(a) Executive will not, unless otherwise required by law, at any time during the
term of employment hereunder and for two years thereafter, divulge to any person
other than a person associated with the Company any secret and confidential
information concerning the Company, or any of its subsidiaries, and their
respective products, customers and plans which Executive acquired during the
course of Executive's employment.
(b) Executive will not, directly or indirectly, except for the benefit of the
Company, at any time during the term of employment hereunder, become an officer,
director, stockholder, partner, associate, employee, owner, agent, creditor,
independent contractor, co-venturer or otherwise, or be interested in or
associated with any other corporation, firm or business engaged in the same or
any similar business then competitive with that of the Company or any of its
subsidiaries.
(c) Executive will not, directly or indirectly, except for the benefit of the
Company, during the term of employment and for a period of one year thereafter:
(i) (A) solicit, cause or authorize, directly or indirectly, to be
solicited for or on behalf of Executive or third parties, from persons who were
customers of the Company at any time within one year prior to the cessation of
Executive's employment hereunder, any business similar to the business
transacted by the Company with such customer; or
(B) accept or cause or authorize, directly or indirectly, to be
accepted for or on behalf of the Executive or third parties, any such business
from any such customers of the Company as defined in the preceding subparagraph.
(ii)(A) solicit, entice, persuade or induce, directly or indirectly, any
employee of the Company or any of its subsidiaries or any other person who was,
at any time within one year prior to the cessation of Executive's employment
hereunder, then under contract with or rendering services to the Company or any
of its subsidiaries, to terminate his or her employment by, or contractual
relationship with, the Company or its subsidiaries or to refrain from extending
or renewing the same (upon the same or new terms) or to refrain from rendering
services to the Company or its subsidiaries or to become employed by or to enter
contractual relations with persons other than the Company or its subsidiaries;
or
(B) approach any such employee or other person for any of the foregoing
purposes; or
(C) authorize or knowingly approve or assist in the taking of any such
actions by any person other than the Company or any of its subsidiaries.
(iii) provided, however, that if the employment of Executive has been
terminated without Cause under this Agreement and the Company has failed to
deliver to Executive the Severance Compensation and other benefits due him
pursuant to this Agreement, Executive shall not be subject to this Paragraph
7(c) immediately upon such non-delivery.
(d) Notwithstanding any alleged breach of the provisions of this Paragraph 8 by
Executive, this Agreement shall continue in full force and effect, and the
Company shall be required to make all payments and furnish all benefits due to
Executive hereunder, until such time as there is a final judgment by a court of
competent jurisdiction finding that there has been a material breach of this
Paragraph 7 by Executive, which is no longer subject to appeal by Executive.
9. Binding Effect; Governing Law; Notice of Breach and Right to Cure. (a) The
rights and obligations under this Agreement shall inure to the benefit of and
shall be binding upon the Company and its successors and assigns, including any
corporation with which the Company shall merge or consolidate or to which it
shall sell all or substantially all of its assets. This Agreement is otherwise
nonassignable.
(b) The interpretation and construction of this Agreement shall be governed by
the laws of the State of Florida.
(c.) In the event of any material breach by either party to this Agreement, the
non-breaching party shall give the breaching party written notice thereof, and
unless otherwise provided for herein, the breaching party shall have twenty
business days from the receipt of such notice to cure such breach. If the breach
is cured within such twenty business day period, no breach will be deemed to
have occurred hereunder.
10. Indemnity. The Company shall forever protect, hold harmless, and indemnify
Executive against any and all claims, demands, losses, costs (including
attorneys' fees), damages, suits, judgments, penalties, fines, expenses, and
liability of any kind and nature whatsoever arising directly or indirectly out
of or in connection with the performance by Executive of the duties described in
this Agreement. The Company shall further indemnify Executive if Executive was
or is threatened to be made a party to any threatened pending, or completed
action or suit by or in the right of or in the name of the Executive or in the
name of the Corporation to procure a judgment against Executive by reason of the
fact that Executive is or was a director, officer, employee or agent of the
Company or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorney's fees and
expenses) actually incurred by the Executive in connection with the defense or
settlement of such negotiation, action or suit. Expenses incurred by Executive
in defending a civil or criminal action, suit or proceeding shall be paid by the
Company upon the request by Executive, which request may be in advance and from
time to time, of the final disposition of such action, suit or proceeding. The
indemnification provided hereby shall not be deemed exclusive of all rights to
which Executive may be entitled under any Bylaw, agreement, vote of stockholders
or disinterested Directors or otherwise, both as to action in Executive's
official capacity and as to action in another capacity while holding such
office, and shall continue to Executive as a person who has ceased to be a
Director, officer or agent as to claims arising during or as a result of the
service to the Company and shall inure to the benefit of Executive's heirs,
executors and administrators. References to the Company shall include, in
addition to the resulting corporation, any constituent corporation or business
enterprise (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued would
have had power and authority to indemnify its directors, officers, and employees
or agents so that if Executive is or was a director, officer, employee or agent
of such constituent corporation or enterprise, or is or was serving at the
request of such constituent corporation or enterprise as a director or officer,
of another corporation, or enterprise, shall stand in the same position with
respect to the resulting or surviving corporation or enterprise as Executive
would have with respect to such constituent corporation or enterprise as if its
separate existence had continued. References to "fines" shall include any excise
taxes and penalties assessed to Executive with respect to any function; and
references to "serving at the request of the Company" shall include any service
as a director or officer of the Company which imposes duties on, or involves
services by Executive. This right of indemnity shall extend to Executive whether
or not the Company would have the power to indemnify Executive against such
liability under Delaware Corporation law and may not be altered, amended, or
rescinded except by Court order or the advance written consent of Executive. The
Company agrees to purchase, as soon as practicable after the date of this
Agreement, and keep in full force and effect during the term of this Agreement
directors and officers liability insurance in an amount not less than $10
million.
11. Miscellaneous. (a) Consent to Jurisdiction. Each party hereto consents to
and agrees to submit solely to the jurisdiction of any court of competent
jurisdiction of the State of Florida or any federal court of competent
jurisdiction sitting within such state, in connection with any action or
proceeding brought by a party hereto in order to enforce any right or remedy
under this Agreement, and each party hereto agrees that service of process
relating to any such proceeding by mail or delivery at its address for notices
as specified in this Agreement shall be legally sufficient for all purposes.
(b) Notice. Any notice or other communication to be given under this Agreement
shall be in writing and delivered personally or by first class mail, postage
prepaid, to the Company at 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxx 00000 and
to Executive to 0000 Xxxxxxxx Xxx. #00, Xxxxx, XX 00000. Each party shall notify
the other party in writing of any change in address. The new address shall be
used for all subsequent notices or communications until again changed by written
notice.
(c.) Amendment and Termination. This Agreement may be amended or
terminated in whole or in part at any time and from time-to-time upon
mutual written consent of the Company and Executive.
(d) Prior Agreements. All prior Agreements between the Company and Executive
are, to the extent such agreements relate to the employment of Executive by the
Company, hereby deemed superseded by this Agreement.
(e) Entire Agreement. This Agreement constitutes the complete and exclusive
statement of the agreement between the parties and supersedes all proposals,
oral or written, and all other communications between the parties relating to
the subject matter of this Agreement. Neither party is justified in relying on
such proposals or communications.
(f) Survivability. This Agreement constitutes a separate instrument, enforceable
in accordance with its terms, and neither this Agreement nor the obligations of
either party hereunder shall, under any circumstances or in any legal
proceeding, be deemed to have merged into or with any other agreement.
(g) Severability. If any provision of this Agreement is held to be void or
unenforceable by any court of competent jurisdiction, only that objectionable
term or provision shall be deleted herefrom while the remainder of the terms,
provisions, and agreements shall remain enforceable.
(h) Survivor Bound. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, the legal representatives, successors in
interest, and assigns, respectively, of each such party.
(i) Captions. Paragraph titles or captions contained in this Agreement are
inserted only as a mater of convenience and as reference and in no way define,
limit, extend, or describe the scope of this Agreement or the intent of any
provision hereof.
(j) Execution in Counterparts. This Agreement may be executed in several
counterparts, and each counterpart shall be considered as an original.
IN WITNESS WHEREOF, the Company has caused this Employment Agreement to be
signed and sealed by its undersigned officer, hereunto duly authorized, and
Executive has set his hand hereto, all as of the day and year first above
written.
ATTEST: TROPIC COMMUNICATIONS, INC.
By:
Title
Xxxxx Xxxxxxxxxx, an individual
