EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is effective as
of June 1, 1996, by and between APOLLO INTERNATIONAL OF DELAWARE, INC., a
Delaware corporation ("Company"), and XXXXX X. XXXXXX ("Executive") currently
holding the position of President and Chief Executive Officer.
W I T N E S S E T H:
WHEREAS, the Company believes that the attraction and retention of key
employees such as the Executive is essential to the Company's growth and
success; and
WHEREAS, the Company desires to employ Executive as its Chief Executive
Officer and President, and Executive desires to accept such employment, all on
the terms and conditions as hereinafter provided; and
WHEREAS, Executive is currently receiving compensation for services
rendered to the Company and/or its subsidiaries.
NOW, THEREFORE, intending to be legally bound hereby, the parties
hereto agree as follows:
1. Term. Subject to the provisions for termination as hereinafter
provided, the term of this Employment Agreement shall begin on June 1, 1996 (the
"Commencement Date") and shall continue for the five (5) year period thereafter.
Such term automatically shall be extended for one (1) additional Contract Year
(as hereinafter defined) as of each anniversary of the Commencement Date in each
year beginning with the fifth anniversary of the Commencement Date and
thereafter unless (i) this Agreement is terminated as provided in Section 8
hereof, or (ii) either the Executive or the Company deliver written notice to
the other for the termination of this Agreement ninety (90) days prior to the
Agreement's Expiration Date (as hereinafter defined). The term "Expiration Date"
as used in this Agreement shall mean the date that is five years from the date
of this Agreement, unless this Agreement is extended as provided herein, in
which event the Expiration Date shall mean the date that is the last day of such
Contract Year.
A. For the purposes of this Agreement the term "Contract Year"
shall mean the 365 day (or 366 day, in the case of a leap year) period
commencing with the Commencement Date and each 365 (or 366) day period
thereafter.
2. Duties.
A. In connection with his duties and responsibilities as chief
executive officer and president of the Company, Executive by virtue of such
office shall be the most senior officer of such corporation, and all other
officers and agents of such corporations shall be subject to his
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xxxxxxxxx. As such chief executive officer, Executive shall be responsible for
interpretation and required implementation of the policies of such corporation
as determined and specified from time to time by the board of director of such
corporation, and he shall be responsible for the general management and
direction of the business and affairs of such corporation. As chief executive
officer, Executive shall have plenary authority and power, including general
executive powers, the authority to delegate, and assign duties, responsibilities
and authorities, and, in the name of such corporation and on their behalf, to
negotiate and make any agreements, waivers or commitments which do not require
the express approval of the board of directors. As chief executive officer of
the Company, Executive shall also have all the powers ordinarily and customarily
exercised by the chief operating officer of a corporation of like type and size
as the Company.
B. Company further hereby agrees to cause Executive to be
named and be re-elected during the Term of this Agreement as a director of the
Company.
C. If the Company materially and adversely changes Executive's
duties and responsibilities (as set forth above) without his consent, Executive
shall have the right to terminate his employment with the Company, but such
termination shall not be considered a voluntary resignation or termination of
such employment or of this Agreement but rather a discharge of Executive by the
Company without cause. Executive shall be deemed not to have consented to any
written proposal calling for a material adverse change in his duties and
responsibilities unless he shall give written notice of his consent thereto to
the board of directors of the Company within fifteen (15) days after receipt of
such written proposal. If Executive shall not have given such consent, the
Company shall have the opportunity to withdraw such proposed material change by
written notice to Executive given within ten (10) days after the end of said
fifteen (15) day period.
D. Executive shall not be required, without his written
consent, to locate his office more than twenty (20) miles distance by public
highway from Apollo Beach, Florida, or to be absent from the metropolitan Apollo
Beach, Florida area on business more than seventy-five (75) working days in any
one year or more than fourteen (14) consecutive days at any one time.
3. Base Salary.
A. As full compensation for services rendered under this
Agreement, the Company shall pay Executive, during the term of this Agreement, a
base salary of ONE HUNDRED FIFTY THOUSAND AND NO/100ths ($150,000.00) per year
(the "Base Salary"), payable in accordance with the normal payroll practices of
the Company. In addition to the Base Salary, the Company shall pay Executive
bonuses from time to time as set forth below.
B. On each January 1, during the term of this Agreement, the
base salary shall be increased to reflect the change in the cost of living,
based upon the change, from the proceeding January 1, in the Consumer Price
Index for All Urban Consumers, as published by the U.S. Bureau of Labor
Statistics (reference base 1982-1984 = 100). On each January 1, and at any time
that there is a change in the financial condition or character of the business
of the Company during the term of this Agreement, a committee comprised of
independent members of the Board
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of Directors shall review the base salary amount to determine whether or not to
grant additional increases in the base salary amount.
C. Once the Company's annual gross sales, as calculated in
accordance with Generally Accepted Accounting Principles ("XXXX") exceed
$10,000,000 for a fiscal year, Executive's Base Salary shall increase by $5,000
(the "Raise") in each subsequent Contract Year for each additional $1,000,000 in
annual gross sales that the Company achieves during the preceding fiscal year,
up to and including the $30,000,000 annual gross sales milestone, as calculated
in accordance with XXXX. The Raise shall not be effective until January 1st
immediately following the end of the aforementioned fiscal year; provided,
however, that the Executive shall only be entitled to receive the Raise if
during the same fiscal year applicable above, the Company's earnings before
interest and taxes are at least 10% of the annual gross sales.
4. Stock Options. During the term of his employment, Executive will be
provided with stock options under the Company's stock option plan(s) as
determined by the Company's Board of Directors and/or a committee appointed by
the Board of Directors in accordance with the Company's stock option plan.
5. Bonus Compensation. Based upon Executive's performance and the
Company's operating results, and such other factors as the Board of Directors of
the Company shall determine to be appropriate, Executive may receive from time
to time such bonus compensation as a committee comprised of independent members
of the Board of Directors, in its sole discretion, shall authorize or agree to
pay, payable on such terms and conditions as it shall determine ("Bonus").
6. Fringe Benefits. Executive shall be entitled to vacations, health
care benefits, fringe benefits and reimbursement for reasonable out-of-pocket
expense, including but not limited to those hereinafter detailed, in accordance
with the Company's practices covering executive personnel. The Company shall use
reasonable efforts to seek waivers of waiting periods, if any, applicable to
particular benefits. Such benefits shall include:
A. coverage for Executive and his family, under any major
medical and dental insurance programs and plans, and under any short-term,
long-term or permanent disability programs and plans, which are or may become
generally available to management employees of the Company;
B. retirement benefits at such time and on such amounts as are
paid to executives by the Company at such time as the Company institutes a
retirement plan;
C. reimbursement of all properly approved travel and business
related expenses normally paid by the Company for the benefit of its executives.
All expense reports must be approved by the Chief Financial Officer of the
Company prior to reimbursement;
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D. paid vacation per calendar year as is usual and customary
for a chief executive officer of a company similar to Company, at any time or
times selected by Executive taking into account the convenience of the Company.
Executive shall give the Board of Directors reasonable prior notice of selected
vacation times of one week or more. Unused vacation time will be cumulative from
year to year;
E. days of annual sick leave as is usual and customary for a
chief executive officer of a company similar to Company;
F. a holiday on the following days with full pay: New Year's
Day, President's Day, Easter, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day, and such other holidays as the Company may
declare; and
G. paid leave and reimbursement of all travel, tuition and
related expenses in attending trade conferences and/or seminars and/or college
or other high level courses acceptable to the Board of Directors in its
reasonable discretion.
7. Termination and Payment in the Event of Death or Permanent
Disability.
A. Death. In the event of Executive's death during the term of
this Agreement, Executive's employment with the Company shall be deemed to be
terminated as of the date of death. Upon such termination of employment, the
Executive's estate or other legal representative shall be entitled to receive:
(i) any salary installments and vacation due and
unpaid during the calendar year in which termination of employment occurs,
payable in one lump sum;
(ii) any unpaid Bonus, if any, as may have been
awarded Executive prior to his death under Section 5 hereof, payable in one lump
sum; and
(iii) an amount equal to Executive's then effective
annual Base Salary, as determined under Section 3 of this Agreement, payable in
twelve (12) equal monthly installments on the first day of each calendar month
following the termination of employment under this Section 9.A.
B. Disability. The Company may terminate Executive's
employment hereunder as a result of Executive's "permanent disability" (as
defined below) upon providing notice of such termination to Executive. For
purposes of this Agreement, Executive's "permanent disability" shall be deemed
to have occurred after one hundred twenty (120) days in the aggregate during any
consecutive twelve (12) month period, or after ninety (90) consecutive days,
during which one hundred twenty (120) or ninety (90) days, as the case may be,
Executive, by reason of his physical or mental disability or illness, shall have
been unable to discharge fully his duties under this Agreement. The date of
permanent disability shall be the one hundred twentieth (120th) or ninetieth
(90th) day, as the case may be. In the event Executive, after receipt of notice
from the Company, shall dispute that his permanent disability shall have
occurred, he shall promptly submit
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to a physical examination by the Chief of Medicine of any major accredited
hospital in the metropolitan area, Orlando, Florida, and, unless such physician
shall issue his written statement to the effect that in his opinion, based on
his diagnosis, Executive is capable of resuming his employment and devoting his
full time and energy to discharging his duties within ten (10) days after the
date of such statement, such permanent disability shall be deemed to have
occurred without further dispute by Executive or Company.
In the event of Executive's permanent disability, Executive
shall be entitled to receive a sum equal to three (3) times Executive's then
effective annual Base Salary, as determined under Section 3 of this Agreement,
and any unpaid Bonus as may have been awarded Executive under Section 5 hereof
prior to his permanent disability, which sum shall be payable in thirty-six (36)
equal monthly installments on the first day of each calendar month following
Executive's permanent disability. The Company shall also provide Executive with
all the insurance and other benefits set forth in Section 6.A., hereof, for the
thirty-six (36) month period immediately following Executive's permanent
disability (provided, however, to the extent that the benefits in Section 6.A.
cannot in fact be paid due to the fact that Executive is not in fact employed
hereunder, the Company promptly shall pay Executive the indubitable monetary,
after-tax equivalent thereof in U.S. dollars, without any present value
adjustment).
Whenever compensation is payable to the Executive hereunder
during a time when he is permanently disabled and such disability (except for
the provisions hereof) would entitle him to disability income or to salary
continuation payments from the Company according to the terms of any plan now or
hereafter provided by the Company or according to any Company policy in effect
at the time of such disability, the compensation payable to Executive hereunder
shall be inclusive of any such disability income or salary continuation and
shall not be in addition thereto. If disability income is payable directly to
the Executive by an insurance company under an insurance policy paid for by the
Company, the amounts paid to him by said insurance company shall be considered
to be part of the payments to be made by the Company to him pursuant to this
Section 9.B., and shall not be in addition thereto.
8. Termination by the Company for Cause.
A. The Company may, at its option, terminate this Agreement by
giving written notice of termination to Executive without prejudice to any other
remedy to which the Company may be entitled, either at law or in equity, under
this Agreement, in the event that:
(i) Executive is convicted of (and such conviction is
sustained on final appeal) or, pleads guilty to, or pleads nolo contendere to a
felony crime involving moral turpitude;
(ii) Executive is found by a court of law to be
guilty (which guilty verdict is sustained on final appeal) of or pleads guilty
to or no contest to fraud, conversion, embezzlement, intentionally falsifying
records or reports, or a similar felony involving the Company's property; or
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(iii) Executive continues to willfully breach a
material provision of this Agreement after having received written notice of
such breach and a thirty (30) days opportunity thereafter to cure such breach.
B. In the event of a termination claimed by the Company to be
for "cause" pursuant to clauses (i), (ii) or (iii) of this Section 8, Executive
shall have the right to have the justification for said termination determined
by arbitration. In such event, Executive shall serve on the Company within
thirty (30) days of termination, a written request for arbitration. The Company
immediately shall request the appointment of an arbitrator by the American
Arbitration Association and thereafter the issues shall be determined under the
rules of the American Arbitration Association and the decision of the arbitrator
shall be final and binding on both parties. The parties shall use all reasonable
efforts to facilitate and expedite the arbitration, and shall act to cause the
arbitration to be completed as promptly as possible. During the pendency of the
arbitration Executive shall continue to receive all compensation and benefits to
which he is entitled hereunder. Expenses of the arbitration shall be borne by
the Company pending a final determination of this matter at which time such
expenses shall be borne equally by the parties.
C. In the event of termination for any of the reasons set
forth in subsection A. of this Section 8, except as otherwise provided in
Section 3 of this Agreement, Executive shall be entitled to no further
compensation, Base Salary or other benefits under this Agreement, except as to
that portion of any unpaid Base Salary, Bonus or other benefits accrued and
earned by him hereunder up to and including the final, non-appealable
determination by arbitration as to the justification for such termination for
"cause", if arbitration is invoked. If arbitration is not invoked Base Salary,
Bonus and unpaid benefits shall be accrued and earned up to and including the
effective date of such termination.
D. Anything herein to the contrary notwithstanding, the
employment of the Executive shall not be terminable by the Company for "cause"
if the grounds for such terminations are: (i) the result of bad judgment or poor
economic results on the part of Executive, (ii) any act or any omission believed
by Executive in good faith to have been in or not opposed to the interests of
Company, (iii) any act or omission in respect of which a determination could
properly be made that Executive met the applicable standard of conduct
prescribed for indemnification or reimbursement or payment of expenses under the
charter or bylaws of the Company or the laws of the State of Delaware or the
directors' and officers' liability insurance of the Company, in each case as in
effect at the time of such act or omission, or (iv) as the result of an act or
omission which occurred more than twelve (12) calendar months prior to the
Executive's having been given notice of the termination of his employment for
such act or omission unless the commission of such act could not at the time of
such commission or omission have been known to a member of the board of
directors of the Company (other than Executive, if he is then a member of the
board of directors), in which case more than twelve (12) calendar months prior
to the date that the commission of such act or such omission was or could
reasonably have been so known, or (v) as a result of the continuing course of
action which commenced and was or could reasonably have been known to a member
of the board of directors of Company (other than Executive) more than twelve
(12) calendar months prior to notice having been given to Executive of the
termination of his employment.
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9. Termination by the Company or Company's Election Not to Extend
Agreement.
A. If the Company terminates Executive "without cause", which
shall mean for any reason other than as set forth in Section 8, Executive shall:
(i) be entitled to receive the full compensation to which he would otherwise be
entitled under this Agreement (just as if Executive had not been so terminated
and was continuing to serve as an employee hereunder for the full term of this
Agreement) payable in a single lump sum distribution (without any present value
adjustment) on the date of such termination, and (ii) be provided, for a
twenty-four (24) month period, with all the insurance and other benefits set
forth in Section 6.A. hereof (provided, however, to the extent that the benefits
in Section 6.A. cannot in fact be paid due to the fact that Executive is not in
fact employed hereunder, the Company promptly shall pay Executive the
indubitable monetary, after-tax equivalent thereof in U.S. Dollars, without any
present value adjustment).
B. If the Company elects to not extend this Agreement under
Section 1 hereof, Executive shall be entitled to receive an amount equal to
Executive's then effective annual Base Salary, payable in twelve (12) equal
monthly installments commencing on the first day of the calendar month following
the Expiration Date; provided however, if Executive is terminated "without
cause" during the twelve (12) months immediately preceding any Expiration Date,
Executive shall receive all of the compensation and benefits to which he would
be entitled under Section 9.A. hereof (payable in accordance with Section 9.A.),
in addition to the compensation provided in this Section 9.B.
10. Change in Control. In the event Executive's employment with the
Company is terminated by the Company within nine (9) months following a "Change
in Control" of the Company (as defined below), then the Company shall pay to
Executive on the date of such termination a single lump sum distribution
(without any present value adjustment) equal to his Base Salary (at the
then-existing rate as determined in accordance with Section 3), for the
remaining term of this Agreement; provided such payment shall be based upon a
minimum period of three (3) years following the date of such termination,
regardless of whether such three (3) year period extends beyond the term of this
Agreement. The payments provided by this Section shall be in addition to any
benefits payable pursuant to Sections 7, 8, 9 and/or 11.
The term "Change of Control" shall mean any of the following events:
(A) the reorganization or consolidation of the Company, with
one or more other companies, other than a transaction following which at least
fifty-one percent (51%) of the ownership interests of the Company resulting from
such transaction are owned by persons who, prior to such transaction, owned at
least fifty-one percent (51%) of the outstanding voting shares of the Company;
or
(B) the acquisition of substantially all of the assets of the
Company or of more than fifty-one percent (51%) of the voting shares of the
Company by any person or entity or by any persons or entities acting in concert.
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11. Termination by Executive. Executive may, at his option, after
complying with this Section, terminate this Agreement in the event of a material
breach of the terms of this Agreement by the Company. Executive shall be
required to give written notice to the Company setting forth with particularity
the nature of the material breach. The Company shall have thirty (30) days
following its receipt of Executive's written notice in which to cure its breach
before Executive's termination of this Agreement shall be effective. In the
event Executive's termination shall be effective under this Section 11,
Executive shall: (i) be entitled to receive the full compensation to which he
would otherwise be entitled under this Agreement (just as if Executive had not
so terminated his employment and was continuing to serve as an employee
hereunder for the full term of this Agreement) payable in a single sum
distribution (without any present value adjustment) on the date of such
termination, and (ii) be provided, for a thirty-six (36) month period, with all
the insurance and other benefits set forth in Section 6 A. hereof (provided,
however, to the extent that the benefits in Section 6 A. cannot in fact be paid
due to the fact that Executive is not in fact employed hereunder, the Company
promptly shall pay Executive the indubitable, after-tax monetary equivalent
thereof in U.S. Dollars, without any present value adjustment). If Executive
terminates this Agreement for any reason other than pursuant to this Section 11,
except as otherwise provided in Section 7 of this Agreement, Executive shall be
entitled to no further compensation or other benefits under this Agreement,
except as to that portion of any unpaid salary and other benefits accrued and
earned by him hereunder up to and including the effective date of such
termination.
12. Confidential Information. Executive recognizes and acknowledges
that the Company has, through the expenditure of substantial time, effort and
money, developed and acquired certain confidential information and trade secrets
which have become of great value to the Company in its operations. Executive
further acknowledges and understands that in the course of performing his duties
for the Company, Executive has received and will receive special training and
experience, and has had and will have access to the trade secrets and
confidential information of the Company. Executive agrees that during the course
of his employment and at any time after the termination or expiration thereof he
will not make any independent use of, publish or disclose, or authorize anyone
to publish or disclose, to any other person or organization, any of the
Company's trade secrets and confidential information, except as required in the
course of his employment with the Company or by law. Upon request of the Company
and, in any event upon the cessation of Executive's employment with the Company,
whether with or without cause, Executive will promptly return all tangible
expressions of trade secrets and confidential information in his possession and
control and all copies thereof. As used herein, the term "trade secrets and
confidential information" shall mean client lists, applicant lists, and other
related client and applicant data, computerized compilation of such data,
training materials and information, policy and procedure manuals, video and
audio recordings of training and operation methods, sales, services, support and
marketing practices and operations, advertising themes, formats of advertising
and other business methods, and techniques, processes and financial information
of the Company, all of which are not generally known to the trade or industry
and which will be of competitive use by them. "Trade secrets and confidential
information" shall not include intangible information which is generally known
and used by persons with training and
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experience comparable to Executive as of the date of this Agreement and all
intangible information which is common knowledge in the industry or otherwise
legally in the public domain.
Executive further agrees that the restrictions set forth in
this Section 12 are in addition to, and not in lieu of, any other restrictions
or obligations placed upon him, and/or any rights or remedies available to the
Company, by any statute or at common law.
13. Covenant not to Compete. Executive covenants and agrees that, in
order to protect the Company's legitimate interest in its trade secrets and
confidential information, special training, and business during the term of his
employment, for a period of five (5) years following the expiration or
termination of this Agreement or any renewal of the Agreement, however the same
shall occur, whether voluntary or involuntary, Executive will not, without the
prior written consent of the Company, directly or indirectly,
A. engage, whether by virtue of stock ownership, management
responsibilities or otherwise, in companies, businesses, organizations and/or
ventures which manufacture, market or distribute products which are competitive
with any of the "Company's Products" (as hereinafter defined) anywhere in the
world; or
B. become interested, directly or indirectly, whether as
principal, owner, stockholder, partner, agent, officer, director, employee,
salesman, joint venturer, consultant, advisor, independent contractor or
otherwise, in any person, firm, partnership, association, venture, corporation
or entity engaging directly or indirectly in any of the activities described in
Subsection 13A above; or
C. knowingly solicit the employment of any of the Company's
personnel (as hereinafter defined).
For purposes of this Agreement:
(i) the term "Company Personnel" shall mean any
person employed by the Company at any time through the end of the term of this
Agreement, but excluding any person who has left such employment for a
continuous period exceeding one (1) year;
(ii) the term "Company" shall include any successor
in interest whether by sale, merger, liquidation or the like, and any of the
Company's subsidiaries and affiliates;
(iii) the term "Company's Products" shall mean any
present or future (future being limited to the term of this Agreement and any
and all extensions thereof) product (i) being sold by the Company or (ii) any
product designed, engineered, manufactured, assembled, or enhanced (whether or
not sold) by the Company.
D. None of the foregoing shall prevent Executive from holding
up to two percent (2%) in the aggregate of any class of securities of any entity
engaged in the prohibited
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activities described above, provided that, such securities are listed on a
national securities exchange or registered under Section 12(g) of the Securities
and Exchange Act of 1934.
E. If any of the provisions contained in this Section 13 are
held to be unenforceable because of the duration of such provision, the
geographical area covered thereby, and/or the range of the Company's products
protected, the parties agree that the court of competent jurisdiction making
such determination shall have the power to reduce or otherwise modify the
duration, the geographical area of such provision, and/or the range of the
Company's products protected, and, in its reduced or modified form, such
provisions shall then be enforceable.
14. Remedies in Event of Breach.
A. Injunctive Relief. The parties acknowledge that each would
be irreparably harmed by any breach of the covenants contained in Sections 12
and 13 of this Agreement, and that either party's remedy at law for any breach
by the other party of their obligations under Sections 12 or 13 of this
Agreement would be inadequate, and would be impossible to ascertain and
therefore, in the event of the breach or threatened breach of any obligations
under Sections 12 and 13 of this Agreement, either party, in addition to any and
all other remedies at law or in equity, shall have the right to enjoin the other
party from any threatened or actual activities in violation thereof; and the
parties hereby consent and agree that temporary and permanent injunctive relief
may be granted in any proceedings which might be brought to enforce any such
covenants without the necessity of proof of actual damages and without the
necessity of posting bond. In the event either party does apply for such
injunction, the other party shall not raise as a defense thereto that such
applying party has an adequate remedy at law.
B. Damages; Accounting for Profits. In addition to any
injunctive relief that may be granted to the Company or Executive for breach of
this Agreement, the Company and Executive shall be entitled to recover all
damages, including reasonable attorneys' fees and costs (including paralegals'
fees), sustained or incurred by the Company or Executive by reason of a
violation or threatened violation of the terms of this Agreement, and to receive
such other remedy or remedies as the court determines is appropriate. Executive
covenants and agrees that, if he violates any of his covenants or agreements
under Sections 12 or 13 hereof, the Company shall be entitled to an accounting
and repayment of all profits, compensations, commissions, remunerations or
benefits which Executive directly or indirectly has realized or may realize as a
result of, growing out of, or in connection with, any such violation; such
remedy shall be in addition to and not in limitation of any injunctive relief or
any other rights or remedies to which the Company is or may be entitled at law
or in equity or under this Agreement.
15. Reasonableness. Executive has carefully read and considered the
provisions of Sections 12 and 13 hereof and, having done so, agrees that the
restrictions set forth in such sections, including, but not limited to, the time
period of restriction, the geographical areas of restriction, and the definition
of Company Products set forth therein, are fair and reasonable and are
reasonably required for the protection of the interests of the Company, and
further that the
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geographical areas of restriction set forth therein accurately reflect the area
in which he will be actively engaged in the performance of services.
16. No Inconsistent Obligations. Executive represents and warrants that
no action required of him under this Agreement or any other agreements or
understandings, written or oral, entered into with the Company will conflict
with, breach or otherwise impair any previously existing agreements or
understandings, whether written or oral, into which Executive has entered with
other persons or entities, including agreements with respect to proprietary
information or non-competition.
17. Indemnification. The parties shall enter into a separate
indemnification agreement, in form and substance mutually agreeable to the
parties, within ninety (90) days from the execution of this Agreement.
18. Notices. Any notice to be given hereunder shall be deemed to be
given when delivered by hand or by overnight courier to the party for whom the
notice is intended, or three (3) days after notice is placed in the U.S. mail
properly addressed to the party for whom notice is intended, at the following
address:
If to the Company: Apollo International of Delaware, Inc.
0000 Xxxxx X.X. Xxxxxxx 00
Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
If to Executive: Xx. Xxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
19. Binding Effect and Governing Law. This Agreement supersedes all
prior understandings and agreements between the parties with respect to the
subject matter hereof. This Agreement shall be binding upon the legal
representatives, heirs, distributees, successors and assigns of the parties. The
Agreement contains the entire agreement of the parties, and may not be changed
orally but only in writing signed by the party against whom enforcement of any
such change is sought. It is agreed that a waiver by either party of a breach of
any provision of this Agreement shall not be operated or be construed as a
waiver of any subsequent breach by that same party. This Agreement shall be
governed by the laws of the State of Florida.
20. Severability. In the event that any terms or provisions of this
Agreement shall be held to be invalid or unenforceable by a court of competent
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remaining terms and provisions hereof.
21. Assignability. The rights or obligations contained in this
Agreement shall not be assigned, transferred, or divided in any manner by
Executive or Company, without the prior
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written consent of the other; provided however, that nothing in this Section 21
shall preclude Executive from designating a beneficiary to receive any benefits
hereunder upon his death, or the executors, administrator or other legal
representatives of Executive or his estate from assigning any rights hereunder
to the person(s) entitled thereto. Notwithstanding the foregoing, this Agreement
shall be binding on any entity which by purchase of assets, merger, or
otherwise, becomes a successor to the business of Company.
22. Headings. The headings of paragraph herein are included solely for
convenience of reference and shall not control the meaning or interpretation and
performance of any of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
COMPANY:
APOLLO INTERNATIONAL OF DELAWARE, INC.
By: /S/ Xxxxx X. Xxxxxx
-----------------------------------------
Xxxxx X. Xxxxxx
President
EXECUTIVE:
/S/ Xxxxx X. Xxxxxx
-----------------------------------------
XXXXX X. XXXXXX
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