EMPLOYMENT AGREEMENT
EXHIBIT 10.36
This Employment Agreement (the "Agreement") is made this 27th day of June, 2003, by and between Xxxxxxx Leisure Limited, a Bahamas international business company (the "Company"), and Xxxxxxx Xxxxxxx ("Employee").
W I T N E S S E T H:
WHEREAS, the Company and Employee desire to provide for the terms of the services to be performed by Employee for the Company.
NOW THEREFORE, in consideration of the premises and mutual agreements hereinafter contained, the parties hereto agree as follows:
1. Employment; Duties. The Company hereby employs Employee as Senior Vice President and Chief Financial Officer of the Company and Employee hereby accepts such employment. Employee shall have such duties and responsibilities consistent with the position as may be determined from time to time by the Board of Directors of the Company (the "Board") or the Chief Executive Officer of the Company (the "CEO"), including duties with respect to affiliates (as defined in Rule 405 under the Securities Act of 1933, as amended) of the Company (each, an "Affiliate"). During the term of this Agreement, Employee shall devote all his working time and effort to the conduct of his duties hereunder. Employee shall be based at the principal offices of the Company's Xxxxxxx Management Services, LLC Affiliate, which offices currently are located in Coral Gables, Florida.
2. Effective Date; Term. This Agreement is for a term commencing July 28, 2003 and terminating on July 31, 2006, unless terminated sooner in accordance with the terms and conditions in Section 5, below.
3. Compensation.
(a) Salary; Bonus; Etc. Except as otherwise provided herein, the Company (or any Affiliate) shall pay to Employee during the term hereof compensation as described in this Section 3(a), all of which shall be subject to such deductions as may be required by applicable law or regulation:
(i) Base Salary. (A) a base salary at the rate of One Hundred Ninety Five Thousand Dollars ($195,000) per year for 2003 and (B) a base salary at the rate of not less than One Hundred Ninety Five Thousand Dollars ($195,000) per year for each calendar year ("Year") or portions thereof, as the case may be, thereafter during the term of this Agreement, subject to review annually, commencing in 2004, and possible increase in the sole discretion of the Board, by the Board payable in bi-weekly installments (the "Base Salary").
(ii) Incentive Bonus. Employee is eligible to receive a bonus (the "Incentive Bonus") equal to fifty percent (50%) of Base Salary tied to achieved Company Budgeted Net Earnings (as defined below) for the respective Year or portion thereof, as the case may be, in the term. Employee's right to a bonus hereunder for 2003 and 2006, will be subject to proration as described below in this Section 3(a)(ii). With respect to each Year during the term hereof, the Incentive Bonus shall be based on a budget for the four fiscal quarters of each Year hereunder, which budget shall include an estimate of the Net Earnings for such Year and which budget shall have been approved for the purpose of the compensation payable hereunder by the Compensation Committee of the Board (the "Budget"). At the end of the Year , if the Company shall have met seventy-five percent (75%) of the Net Earnings set forth in the Budget ("Budgeted Net Earnings"), for the Year to date Employee shall be entitled to receive an amount equal to 0.250 times the Base Salary then in effect for the Year in question. During the term of this Agreement, in the event that at the end of any Year in question, the Company has exceeded seventy-five percent (75%), up to and including one-hundred twenty-five percent (125%) of Budgeted Net Earnings for such Year, then for each one percent (1%) increase over seventy-five percent (75%) up to one hundred twenty-five percent (125%), the Employee shall be entitled to receive an additional amount equal to 0.010 times the Base Salary then in effect for the Year in question. In the event that at the end of any such Year, the Company has exceeded one hundred twenty-five percent (125%) of Budgeted Net Earnings for such Year, then for each one percent (1%) increase over one hundred twenty-five percent (125%), the Employee shall be entitled to receive, in addition to the amounts payable for exceeding seventy-five percent (75%) of Budgeted Net Earnings, an amount equal to 0.0050 times the Base Salary then in effect for the Year in question. Notwithstanding the foregoing, Employee shall not be entitled to receive any amount in excess of two and one-half percent (2.5%) of the Budgeted Net Earnings pursuant to this Section 3(a)(ii) for such Year. Any amount which Employee is entitled to receive herein, shall be payable within sixty (60) days after the end of the Year in question. For purposes of this Section 3(a)(ii), "Net Earnings" shall mean earnings of the Company before taxes, interest, depreciation and amortization determined in accordance with generally accepted accounting principles consistently applied, except that the calculation of Net Earnings shall not take into account the effect of the loss on disposal related to the discontinued operations charge for 2003 in connection with the disposition of the Company's day spa assets. By way of clarification, except as otherwise provided herein, Employee shall not be entitled to receive the Incentive Bonus for any Year unless, with respect to 2003 through 2005, Employee is employed by the Company at the close of business on December 31st of each such Year, and with respect to 2006, Employee is employed by the Company on July 30, 2006. With respect to the Bonus that would otherwise be payable pursuant to the formula set forth above in this Section 3(a)(ii) for 2003, that Bonus shall be reduced to reflect Employee's employment with the Company for only part of 2003, with the actual Bonus payable for 2003 being the result of multiplying the Bonus otherwise payable pursuant to the above formula by 0.449. With respect to the Bonus that would otherwise be payable pursuant to the formula set forth above in this Section 3(a)(ii) for 2006, that Bonus shall be reduced to reflect Employee's employment with the Company for only part of 2006, with the actual Bonus payable for 2006 being the result of multiplying the Bonus otherwise payable pursuant to the above formula by 0.581.
(iii) Disability Insurance. During each Year during the term hereof, the Company shall pay to Employee up to Three Thousand One Hundred Fifty Dollars (U.S. $3,150.00) (the "Maximum Disability Payment") (pro-rated for partial Years hereunder) to be used toward the payment of the premium on a disability insurance policy (a "Policy") covering Employee, upon delivery to the Company of evidence reasonably satisfactory to the Company of the purchase by Employee of a Policy with an annual premium due during such Year in an amount at least equal to the amount requested by Employee under this Section 3(a)(ii). The Maximum Disability Payment shall be increased proportionately to the extent, and at the time of, any increase in the Base Salary during the term hereof. The Maximum Disability Payment shall be payable in equal installments at the times that the Base Salary is paid to Employee and shall be subject to such deductions as may be required by applicable law or regulation.
(b) Deferred Compensation. Employee may elect, in accordance with the provisions of any deferred compensation plan agreement that may be entered into between, Employee and the Company (a "Deferred Plan"), to defer all or a portion of the amount of the Incentive Bonus payable to Employee. Any and all amounts that Employee elects to defer shall be held and administered in accordance with the terms and provisions of any such Deferred Plan.
(c) Other Benefits. During the term hereof, the Company shall provide to Employee all other benefits currently provided to the executive officers (as defined for purposes of the Securities Exchange Act of 1934, as amended) of the Company, as well as those which the Company may, in the future, provide to its executive officers, including, without limitation, life insurance, medical coverage, benefits under any 401(k) plan of the Company or any Affiliate and the right to participate in share option or similar plans. The Company also shall provide Employee with a private office and an annual allowance of Seven Thousand Dollars ($7,000) for the use by Employee in purchasing or leasing an automobile and for the payment of insurance, maintenance and other expenses in connection with such automobile.
(d) Expense Reimbursement; Relocation. The Company shall reimburse Employee for all ordinary and necessary business expenditures made by Employee in connection with, or in furtherance of, his employment hereunder upon presentation by Employee of expense statements, receipts, vouchers or such other supporting information as may from time to time be reasonably requested by the President or the Board. When traveling for business of the Company, Employee, at his sole discretion and at the Company's expense, shall travel via "Business" or "Club" class accommodations.
(e) Share Options. The Company shall cause the CEO to recommend to the Compensation Committee of the Board that it meet within thirty (30) days after the date hereof and that such committee shall award at such meeting to Employee options to purchase 25,000 of the Company's common shares, exercisable in three (3) equal annual installments commencing on the first anniversary of the date of grant and with a term of ten (10) years, and, generally, with terms similar to those awarded to other senior executives of the Company. In addition, Employee shall be eligible for the 2003 annual grant of options to employees of the Company, based on the formula used by the Company to determine the number of options granted to various officer and employee positions with the Company, and prorated to reflect that portion of 2003 during which Employee was employed hereunder.
4. Vacation
(a) Vacation. Employee shall be entitled to (i) four (4) weeks paid vacation per Year (prorated for partial Years hereunder) (the "Vacation Days") and (ii) additional vacation days on each day that is a United States federal holiday. Notwithstanding the foregoing, Employee shall not be entitled to take in excess of two (2) consecutive weeks of vacation without the prior written consent of the President. The vacation provided for in this Section 4 shall be coextensive with, and not cumulative with, vacations allowed pursuant to any employment agreements or other arrangements with any Affiliates of the Company. With respect to the Vacation Days not taken by Employee during a Year: the Company shall pay to Employee on or before January 30th of the following Year, an amount representing the Base Salary (at the rate in effect for the Year during which the Vacation Days were to have been taken) with respect to the Vacation Days not taken by Employee during that Year; provided, however, that no payment shall be made with respect to more than ten (10) Vacation Days for any one Year (prorated for partial years hereunder). In the event that Employee's employment hereunder is terminated other than pursuant to Section 5(c) or Section 5(f) below, then the Company shall pay to Employee within fifteen (15) days after the date of such termination an amount representing the Base Salary at the rate in effect for the Year during which such termination occurs with respect to the Vacation Days not taken by Employee during that Year, pro rated, if appropriate, through the termination date.
5. Termination.
(a) Death. In the event of Employee's death during the term hereof, the Company shall have no further obligations to make payments or otherwise under this Agreement, except that the Company shall pay to Employee's estate (i) within ten (10) days after the date of Employee's death any (A) any unpaid accrued Base Salary pursuant to Section 3(a)(i), above, (B) any unpaid accrued Incentive Bonus pursuant to Section 3(a)(ii), above and (C) any amount due to Employee as of the date of death as reimbursement of expenses under Section 3(d), above; and (ii) within sixty (60) days after the end of the Year in which Employee died, if the Budgeted Net Earnings are met for the Year in question, an amount equal to the Incentive Bonus pursuant to Section 3(a)(ii), above, which would have been payable to Employee for the Year during which Employee died had Employee been employed by the Company on the last day of that Year or, with respect to 2006, July 31, 2006.
(b) Disability. If Employee becomes physically or mentally disabled during the term hereof so that he is unable to perform the services required of Employee pursuant to this Agreement for an aggregate of six (6) months in any twelve (12) month period (a "Disability"), the Company, at its option, may terminate Employee's employment hereunder (the date of such termination, the "Disability Date") and, thereafter, Employee shall not be deemed to be employed hereunder (except that Employee's obligations under Section 6, below, shall remain in full force and effect) and the Company shall have no further obligations to make payments or otherwise under this Agreement, except as provided in this Section 5(b). In determining Disability under this Section 5(b), the Company shall rely upon the written opinion of the physician regularly attending Employee in determining whether a Disability is deemed to exist. If the Company disagrees with the opinion of such physician, the Company may choose a second physician, the two (2) physicians shall choose a third physician, and the written opinion of a majority of the three (3) physicians shall be conclusive as to Employee's Disability. The expenses associated with the utilization of any physician other than the physician regularly attending Employee shall be borne solely by the Company. Employee hereby consents to any required medical examination and agrees to furnish any medical information requested by the Company and to waive any applicable physician/patient privilege that may arise because of such determination. In the event of a Disability, the Company shall pay to Employee (i) within ten (10) days after the Disability Date (A) any unpaid accrued Base Salary pursuant to Section 3(a)(i), above, and (B) any unpaid accrued Incentive Bonus pursuant to Section 3(a)(ii), above, in each case to which Employee was entitled on the Disability Date pursuant to the terms of those Sections and (C) any amount due to Employee as of the Disability Date as reimbursement of expenses under Section 3(d), above; and (ii) within sixty (60) days after the end of the Year in which the Disability Date occurs, if the Budgeted Net Earnings are met for the Year in question, an amount equal to the Incentive Bonus pursuant to Section 3(a)(ii), above, which Employee would have been entitled to receive during the Year in which the Disability Date occurred had Employee been employed by the Company on the last day of that Year. Nothing in this Agreement is intended to cause the Company to be in violation of the Americans with Disabilities Act.
(c) For Cause by Company. The Company may at any time during the term hereof, without any prior notice, terminate Employee's employment hereunder upon the occurrence of any of the following events: (i) a material breach by Employee of this Agreement; (ii) a material violation by Employee of any lawful written policy or directive of the Company (including of the CEO) or any Affiliate applicable to Employee specifically, or to officers or employees of the Company or any Affiliate generally; (iii) Employee's excessive alcoholism or drug abuse that substantially impairs the ability of Employee to perform Employee's duties hereunder; (iv) gross negligence by Employee in the performance of his duties under this Agreement that results in material damage to the Company or any Affiliate; (v) failure of Employee to obey of any material lawful direction from the Board provided such direction is not inconsistent with Employee's duties and responsibilities to the Company or any Affiliate hereunder; (vi) fraud, embezzlement or other criminal conduct by Employee that results in material damage to the Company or any Affiliate, or could reasonably be expected to result in material damage to the Company or any Affiliate; (vii) intentional or reckless conduct that results in material damage to the Company or any Affiliate, or could reasonably be expected to result in material damage to the Company or any Affiliate; or (viii) the committing by Employee of an act involving moral turpitude that results in material damage to the Company, or could reasonably be expected to result in material damage to the Company or any Affiliate. If the Company terminates Employee's employment under this Agreement pursuant to this Section 5(c), the Company shall have no further obligations to make payments or otherwise under this Agreement, except that, the Company shall pay to Employee within sixty (60) days after the date that the Company gives written notice of such termination to Employee (the "Termination Notice Date") any (A) any unpaid accrued Base Salary pursuant to Section 3(a)(i), above, through the date that is thirty (30) days after the Termination Notice Date and (B) any amount due to Employee as of the date of such termination as reimbursement of expenses under Section 3(d), above. Notwithstanding the foregoing, Employee shall, for all purposes, cease to be deemed to be employed by the Company as of the date of any termination of Employee pursuant to this Section 5(c), irrespective of whether written notice of termination is given on such date.
(d) For Cause by Employee. Employee may at any time during the term hereof, without any prior notice, terminate this Agreement upon the occurrence of any of the following events: (i) a material breach by the Company of this Agreement or (ii) a "Change in Control" of the Company (as defined below), subject to the terms of this Section 5(d). In the event that Employee terminates this Agreement pursuant to clause (i) above, then the Company shall pay to Employee within ten (10) days after the date of such termination an amount equal to (A) an amount equal to the Base Salary then in effect for one (1) Year pursuant to Section 3(a)(i), above; (B) any unpaid accrued Base Salary pursuant to Section 3(a)(i), above; (C) any unpaid accrued Incentive Bonus pursuant to Section 3(a)(ii), above; and (D) any amount due to Employee as of the date of such termination as reimbursement of expenses under Section 3(d), above.
For purposes of this Section 5(d), a "Change in Control" of the Company shall be deemed to occur if (i) all or substantially all of the assets of the Company are sold or otherwise disposed of or the Company is liquidated or dissolved or adopts a plan of liquidation, (ii) during any period of twelve (12) consecutive months, Present Directors and/or New Directors cease for any reason to constitute at least half of the Board (for purposes of the preceding clause, "Present Directors" shall mean individuals who, at the beginning of such consecutive 24 month period, were members of the Board and "New Directors" shall mean any director whose election by the Board or whose nomination for election by the Company's shareholders was approved by a vote of at least two-thirds of the directors then still in office who were Present Directors or New Directors); or (iii) any of the following circumstances has occurred: (A) any transaction as a result of which a change in control of the Company would be required to be reported in response to Item 1(a) of the Current Report on Form 8-K as in effect on the date hereof, pursuant to Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), whether or not the Company is then subject to such reporting requirement, (B) any "person" or "group" within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act; (x) becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of twenty percent (20%) or more of the combined voting power of then outstanding securities of the Company, or (y) acquires by proxy or otherwise the right to vote for the election of directors, for any merger or consolidation of the Company or for any other matter or question, more than 20% of the then outstanding voting securities of the Company, except that a person or group shall be deemed to be a beneficial owner of all securities that such person or group has the right to acquire regardless of whether such right is immediately exercisable or only exercisable after the passage of time or (C) any "person" or "group" within the meaning of Sections 13 (d) and 14 (d) (2) of the Exchange Act) that is the "beneficial owner" as defined in Rule 13d-3 under the Exchange Act of 20% or more of the then outstanding voting securities of the Company commences soliciting proxies.
In the event of a Change in Control, this Agreement shall continue in effect until July 31, 2006 unless the Employee terminates this Agreement as provided below. In the event a Change in Control occurs on or before August 1, 2005, Employee may terminate this Agreement within one (1) year after the date of such Change in Control. In the event a Change in Control occurs after August 1, 2005, Employee may terminate this Agreement on or before the date that represents three-fourths of the number of days between the date of the Change in Control and July 31, 2006. Any such termination shall be by written notice to the Board at least thirty (30) days prior to the proposed termination date; provided, however, that if the Change in Control is on or after July 1, 2006, then the aforesaid notice shall be given at any time on or after the Change in Control and prior to or on the termination date. The period of time between the Change in Control and the date of the notice of termination referenced in the preceding sentence is referred to herein as the "Change in Control Period" In the event that Employee so notifies the Company that he wishes to terminate this Agreement, then Employee shall be entitled to receive from the Company, within ten (10) days after the end of the Change in Control Period, an amount equal to (i) the greater of (A) the Base Salary then in effect pursuant to Section 3(a)(i), above, for the remainder of the term of this Agreement which would have occurred in the absence of such termination and (B) twice the Base Salary for one (1) Year then in effect pursuant to Section 3(a)(i), above; (ii) any unpaid accrued Base Salary pursuant to Section 3(a)(i), above; (iii) any unpaid accrued Incentive Bonus pursuant to Section 3(a)(ii), above; and (iv) any amount due to Employee as of the date of such termination as reimbursement of expenses under Section 3(d), above.
(e) Without Cause By Company. In the event that during the term hereof the Company terminates Employee's employment hereunder other than for cause pursuant to Section 5(c) above, then the Company shall pay to Employee within ten (10) days after the date of such termination (except as otherwise provided herein) an amount equal to (i) any unpaid accrued Base Salary pursuant to Section 3(a)(i), above, (ii) an amount equal to the Base Salary then in effect for one (1) Year pursuant to Section 3(a)(i), above: (iii) any unpaid accrued Incentive Bonus pursuant to Section 3(a)(ii), above; and (iv) any amount due to Employee as of the date of termination as reimbursement of expenses under Section 3(d), above.
(f) By Employee for Illness. In the event that during the term hereof Employee becomes ill such that, in the written opinion of a physician reasonably acceptable to the Company, it would not be advisable for Employee to continue his employment with the Company hereunder, Employee may terminate his employment hereunder upon reasonable notice to the Company and, in such event, Employee shall not be deemed to have breached this Agreement as a result of such termination. In the event of such termination by Employee, the Company shall have no further obligations to make payments or otherwise under this Agreement, except that the Company shall pay to Employee within ten (10) days after the date of such termination (i) any unpaid accrued Base Salary pursuant to Section 3(a)(i), above and (ii) any unpaid accrued Incentive Bonus pursuant to Section 3(a)(ii), above, and (iii) any amount due to Employee as of the date of termination of Employee as reimbursement of expenses under Section 3(d), above.
6. Non-Competition; Confidentiality; etc. All references to the "Company" in this Section 6 shall include all Affiliates.
(a) Acknowledgment. Employee acknowledges and agrees that (i) in the course of Employee's employment by the Company, it will be necessary for Employee to acquire information which could include, in whole or in part, information concerning the sales, products, services, customers and prospective customers, sources of supply, computer programs, system documentation, software development, manuals, formulae, processes, methods, machines, compositions, ideas, improvements, inventions or other confidential or proprietary information belonging to the Company or relating to the affairs of the Company (collectively, the "Confidential Information"), (ii) the restrictive covenants set forth in this Section 6 are reasonable and necessary in order to protect and maintain such proprietary interests and the other legitimate business interests of the Company and that such restrictive covenants in this Section 6 shall survive the termination of this Agreement for any reason and (iii) the Company would not have entered into this Agreement unless such covenants were included herein.
(b) Non-Competition. Employee covenants and agrees that during the term hereof and for a period of two (2) years following the termination of Employee's employment hereunder for any reason, Employee shall not, in any portion of the world where, or from which, the Company is then conducting, or had in the then preceding two (2) years conducted, any part of its business, engage, directly or indirectly, whether as an individual, sole proprietor, or as a principal, agent, officer, director, employer, employee, consultant, independent contractor, partner or shareholder of any firm, corporation or other entity or group or otherwise in any Competing Business. For purposes of this Agreement, the term "Competing Business" shall mean any individual, sole proprietorship, partnership, firm, corporation or other entity or group which offers or sells or attempts to offer or sell (i) spa services, skin or hair care products, or degree or non-degree educational programs in massage therapy, skin care or related courses or (ii) any other services then offered or sold by the Company on board vessels or within fifty (50) miles of any location where the Company is then offering such product or service. Notwithstanding the foregoing, Employee is not precluded from (i) maintaining a passive investment in publicly held entities provided that employee does not have more than a five percent (5%) beneficial ownership in any such entity; or (ii) serving as an officer or director of any entity, the majority of the voting securities of which is owned, directly or indirectly, by the Company (collectively, a "Permitted Activity").
(c) Non-Solicitation of Customers and Suppliers. Employee agrees that during his employment with the Company, he shall not, whether as an individual or sole proprietor, or as a principal, agent, officer, director, employer, employee, consultant, independent contractor, partner or shareholder of any firm, corporation or other entity or group or otherwise, directly or indirectly, solicit the trade or business of, or trade, or conduct business with, any customer, prospective customer, supplier, or prospective supplier of the Company for any purpose other than for the benefit of the Company. Employee further agrees that for two (2) years following termination of his employment hereunder with the Company for any reason, Employee shall not, directly or indirectly, solicit the trade or business of, or trade, or conduct business with any customers or suppliers, or prospective customers or suppliers of the Company. Notwithstanding the foregoing, Employee is not precluded from a Permitted Activity.
(d) Non-Solicitation of Employees, Etc. Employee agrees that during the term of his employment hereunder and thereafter for a period of two (2) years, he shall not as an individual or sole proprietor or as a principal, agent, employee, employer, consultant, independent contractor, officer, director, shareholder or partner of any person, firm, corporation or other entity or group or in any individual representative capacity whatsoever or otherwise, directly or indirectly, without the prior express written consent of the Company approach, counsel or attempt to induce any person who is then in the employ of, or then serving as independent contractor with, the Company to leave the employ of, or terminate such independent contractor relationship with, the Company or employ or attempt to employ any such person or persons who at any time during the preceding six (6) months were in the employ of, the Company. Notwithstanding the foregoing, Employee is not precluded from a Permitted Activity.
(e) Non-Disclosure of Confidential Information. Employee agrees to hold and safeguard the Confidential Information in trust for the Company and its successors and assigns, and only use the Confidential Information for purposes of performing his duties hereunder, and agrees that he shall not, without the prior written consent of the Board, misappropriate or disclose or make available to anyone for use outside the Company's organization at any time, either during his employment hereunder or subsequent to the termination of his employment hereunder for any reason, any of the Confidential Information, whether or not developed by Employee, except as required in the performance of Employee's duties to the Company or as required by applicable law. In the event that Employee is requested or required by or under applicable law or court or administrative order to disclose any of the Confidential Information, Employee shall provide the Company with prompt written notice of any such request or requirement so that the Company may seek a protective order or other appropriate remedy. If Employee is legally compelled to disclose Confidential Information, Employee shall disclose only that portion of the Confidential Information which Employee is legally required to disclose.
(f) Disclosure of Works and Inventions/Assignment of Patents. Employee shall disclose promptly to the Company any and all works, publications, inventions, discoveries and improvements authored, conceived or made by Employee during the period of his employment with the Company and related to the business or activities of the Company (the "Rights"), and hereby assigns and agrees to assign all his interest 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 which the Company shall deem necessary to apply for and obtain Letters of Patent or Copyrights, or similar documents or rights, of the United States or any foreign country or to otherwise protect the Company's interest in the Rights. Such obligations shall continue beyond the termination of Employee's employment with the Company for any reason with respect to works, inventions, discoveries and improvements authored, conceived or made by Employee during the period of Employee's employment under this Agreement.
(g) Return of Materials. Upon the termination of Employee's employment with the Company for any reason, Employee shall promptly deliver to the Board all correspondence, drawings, blueprints, manuals, letters, notes, notebooks, financial records, reports, flowcharts, programs, proposals and any other documents concerning the Company's business, including, without limitation, its customers or suppliers or concerning its products, services or processes and all other documents or materials containing or constituting Confidential Information; provided, however, that nothing in this Section 6(g) shall require Employee to deliver to the Board any property that is owned by Employee and that contains no Confidential Information.
(h) Status of Section. The provisions of this Section 6 shall be construed as an agreement on the part of Employee independent of any other part of this Agreement or any other 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 the provisions of this Section 6.
7. Non-Assignment; Successors; etc. The Company may assign any of its rights under this Agreement but may not assign any of its obligations under this Agreement without the prior written consent of Employee, which shall not be unreasonably withheld. The successors of the Company shall be bound by the terms hereof, and where the context permits, references to the "Company" herein shall be deemed to refer to such successors. Employee may assign his rights, but not his obligations, hereunder and the obligations of Employee hereunder, other than the obligations set forth in Section 1, above, shall continue after the termination of his employment hereunder for any reason and shall be binding upon his estate, personal representatives, designees or other legal representatives, as the case may be ("Heirs"), and all of Employee's rights hereunder shall inure to the benefit of his Heirs. All of the rights of the Company hereunder shall inure to the benefit of, and be enforceable by the successors of the Company.
If to Employee:
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxx, 00000
If to the Company:
Xxxxxxx X. Xxxxxxx
c/x Xxxxxxx Management Services
000 Xxxxx Xxxxx Xxxxxxx, Xxxxx #000
Xxxxx Xxxxxx, XX 00000
Facsimile Number: (000) 000-0000
9. Entire Agreement; Certain Terms. This Agreement constitutes and contains the entire agreement of the parties with respect to the matters addressed herein and supersedes any and all prior negotiations, correspondence, understandings and agreements between the parties respecting the subject matter hereof, including, but not limited to all other agreements and arrangements relating to the payment of any compensation to Employee with respect to any services performed, or to be performed on behalf of the Company or any Affiliate. No waiver of any rights under this Agreement, nor any modification or amendment of this Agreement shall be effective or enforceable unless in writing and signed by the party to be charged therewith. When used in this Agreement, the terms "hereof," "herein" and "hereunder" refer to this Agreement in its entirety, including any exhibits or schedules attached to this Agreement and not to any particular provisions of this Agreement, unless otherwise indicated.
10. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
11. Governing Law, etc. This Agreement shall be governed by and construed in accordance with the laws of Florida without regard to choice of law provisions and the venue for all actions or proceedings brought by Employee arising out of or relating to this Agreement shall be in the state or federal courts, as the case may be, located in Miami-Dade County, Florida (collectively, the "Courts"). Employee hereby irrevocably waives any objection which he now or hereafter may have to the laying of venue of any action or proceeding arising out of or relating to this Agreement brought in any of the Courts and any objection on the ground that any such action or proceeding in any of the Courts has been brought in an inconvenient forum. Nothing in this Section 11 shall affect the right of the Company or an Affiliate to bring any action or proceeding against Employee or his property in the courts of other jurisdictions. In the event of any litigation between the parties hereto with respect to this Agreement, the prevailing party therein shall be entitled to receive from the other party all of such prevailing party's expenses in connection with such litigation, including, but not limited, to reasonable attorneys' fees at the trial and appellate court levels.
12. Severability. It is the intention of the parties hereto that any provision of this Agreement found to be invalid or unenforceable be reformed rather than eliminated. If any of the provisions of this Agreement, or any part thereof, is hereinafter construed to be invalid or unenforceable, the same shall not affect the remainder of such provision or the other provisions of this Agreement, which shall be given full effect, without regard to the invalid portions. If any of the provisions of Section 6, above, or any portion thereof, is held to be unenforceable because of the duration of such provision or portions thereof, the area covered thereby or the type of conduct restricted therein, the parties hereto agree that the court making such determination shall have the power to modify the duration, geographic area and/or, as the case may be, other terms of such provisions or portions thereof, and, as so modified, said provisions or portions thereof shall then be enforceable. In the event that the courts of any one or more jurisdictions shall hold such provisions wholly or partially unenforceable by reason of the scope thereof or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's rights provided for herein in the courts of any other jurisdictions as to breaches or threatened breaches of such provisions in such other jurisdictions, the above provisions as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
13. Non-Waiver. Failure by either the Company or Employee to enforce any of the provisions of this Agreement or any rights with respect hereto, or the failure to exercise any option provided hereunder, shall in no way be considered to be waiver of such provisions, rights or options, or to in any way affect the validity of this Agreement.
14. Headings. The headings preceding the text of the paragraphs of this Agreement have been inserted solely for convenience of reference and neither constitute a part of this Agreement nor affect its meaning, interpretation, or effect.
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IN WITNESS WHEREOF, the parties have executed these presents as of the day and year first above written.
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/s/ Xxxxxxx Xxxxxxx |
XXXXXXX LEISURE LIMITED
By: /s/ Xxxxxxx Xxxxxxx Xxxxxxx X. Xxxxxxx President and Chief Executive Officer |
