EXHIBIT 10.18
GENESIS TECHNOLOGY GROUP, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made, entered
into and effective as of the 1st day of August 2004, by and between Genesis
Technology Group, Inc., a Florida corporation ("Genesis"), and Xxxx X. Xxxxxxx
("Executive").
RECITAL:
The Board of Directors of Genesis (the "Board") believes it is in Genesis'
best interest to employ Executive as Genesis' Chief Executive Officer, and
Executive accepts such employment, pursuant to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing recital and the
covenants, agreements, representations, warranties, terms and conditions set
forth in this Agreement, and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, Genesis and Executive, intending
to be legally bound, hereby agree as follows:
1. EMPLOYMENT. Genesis hereby employs Executive as Chief Executive Officer of
Genesis, and Executive hereby accepts such employment, all upon the terms and
conditions contained in this Agreement.
A. EXECUTIVE'S REPRESENTATION. Executive represents, warrants and covenants
to Genesis that Executive is not bound, nor will Executive become bound, by any
covenant, contract, agreement or other obligation that may or does prevent
Executive in any manner from (i) performing Executive's duties as Chief
Executive Officer of Genesis, and/or (ii) fulfilling Executive's obligations
pursuant to this Agreement.
2. EMPLOYMENT PERIOD. Unless sooner terminated pursuant to the terms and
conditions of this Agreement, the term of this Agreement shall commence on the
date first written above, and shall expire three (3) years from such date.
3. COMPENSATION.
A. BASE SALARY. Executive shall be entitled to receive a base salary during
the term of this Agreement of at least One Hundred, Fifty Thousand Dollars
($150,000.00) per year (the "Base Salary"), payable in accordance with the
normal payroll policies of Genesis. The Base Salary shall be subject to all
appropriate withholding taxes.
(i) INCREASES TO BASE SALARY. The Board shall review the Base Salary
on not less than an annual basis. The Board, in its sole and absolute
discretion, may elect to increase the Base Salary at any time, but shall not
ever decrease the Base Salary below its then-current amount. If the Board takes
no action, the Base Salary shall increase a minimum of ten percent (10%)
annually. Any increase in the Base Salary shall constitute an amendment to this
Agreement solely as to the amount of the Base Salary, without waiver or
modification of any other terms or conditions of this Agreement.
B. ANNUAL BONUS. The annual discretionary Bonus Compensation will be
targeted at 25% of Base Salary, which shall be earned at optimal performance to
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Company and personal objectives as designated and determined solely by the CEO
and/or Board of Directors. In addition to our stock option plan and 401K plan,
we will implement a bonus program in which management team will distribute 25%
of consolidated net income of all operations of GTEC, realized or unrealized.
STOCK OPTIONS. Subject to Genesis' Non-Qualified] Option Plan and attendant
forms of Stock Option Agreements, Executive shall be granted free trading stock
options ("Stock Options") for the purchase of shares of common stock in Genesis.
The number of stock options [non-incentive] shall be equal in number to the
previous employment year plus an additional twenty-five percent (25%); the base
number of options being 1,250,000 options for the employment year ending July
31, 2004. The Board maintains the right to increase, but not decrease, this
number. The strike price for these options shall be sixty percent (60%) of the
average closing price for the month of July, the final month of the employment
year, with an expiration date five (5) years from the date of being granted. All
employees' options granted by this contract cannot be diluted by any type of
financial merger or acquisition, reverses of any kind, forward or backward
splits, etc.
C. RESTRICTED STOCK. Executive shall be granted restricted common stock (or
"144 stock") equal to two (2) times the number of options granted in the
employment year (as described in 3C above). The Board maintains the right to
increase, but not decrease, this number. The stock price for these shares shall
be equal to the average closing price for the month of July, the final month of
the employment year. The effective grant date will be November 1st of each year,
commencing in 2004. Said shares shall become free trading 12 months after being
granted to the Executive or sooner when possible. All employees' shares granted
by this contract cannot be diluted by any type of financial merger or
acquisition, reverses of any kind, forward or backward splits, etc. This earned
bonus is based on the following achievements:
i. Year One -- based on completing acquisitions and other activities adding to
the value of the Company.
ii. Year Two -- on the condition that the Company's market cap reaches a
minimum of $25 million.
iii. Year Three -- on the condition that the Company's market cap reaches a
minimum of $50 million.
D. REGISTRATION RIGHTS. In the event the Company registers common stock
held by employees or outside investors, then the company shall also register
stock held by employee under this contract.
E. LISTING BONUS. In the event the company qualifies and joins the American
Stock Exchange or the NASDAQ Small Cap exchange. Employee will
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F. be granted 2.5% of the outstanding shares of the company on the first
day of trading on the new exchange.
4. BENEFITS. During the term of this Agreement, Executive shall be entitled to
receive the following benefits from Genesis (collectively, "Benefits"):
A. HEALTH INSURANCE. Genesis shall obtain on behalf of Executive, pay all
premium amounts related to, and maintain health insurance coverage, as the same
is available to Genesis' other executive level employees. Should Executive
resign, be dismissed or become disabled, this health insurance shall remain in
place permanently, as long as the Company, its merged or acquired successor, or
renamed or surviving entity continues to conduct business.
B. DISABILITY INSURANCE. Genesis shall obtain on behalf of Executive, pay
all premium amounts related to, and maintain, disability insurance in an amount
equal to seventy-five percent (75%) of the Base Salary.
C. LIFE INSURANCE. Genesis shall obtain on behalf of Executive, pay all
premium amounts related to, and maintain, [portable term] life insurance on the
life of Executive, with such beneficiary(ies) as Executive may select in
Executive's sole discretion, in an amount equal to at least One Million Dollars
($1,000,000.00).
D. VEHICLE ALLOWANCE. Executive shall be entitled to a vehicle allowance in
the amount of Five Hundred Dollars ($500.00) per month
E. CELL PHONE ALLOWANCE. Executive shall be entitled to a cell phone
allowance in the amount of One Hundred, Twenty-five Dollars ($125.00) per month.
F. RETIREMENT PLAN. Executive may participate in Genesis' 401(k) or similar
retirement plan as the same is available to Genesis' other executive level
employees.
G. PERSONAL TIME. Employee shall be entitled to Personal Time (e.g.
vacation in accordance with the Personal Time policy of the company in effect
from time to time. Employee is legible for an additional week following one year
for service.
H. EMPLOYMENT LOCATION. Executive shall be employed at Genesis' South
Florida location or at such location selected by the Board of Directors.
I. TRAVEL. All travel required or related to the performance of Executive's
duties pursuant to this Agreement, including, without limitation, all air
travel, hotel accommodations and transfers, shall be of business class caliber
and nature.
J. SUBSCRIPTIONS AND MEMBERSHIPS. The Executive is allotted an annual
allowance of Two Thousand Dollars ($2,000) for club and organization
memberships, periodical and newspaper memberships, and association dues. Such
charges must be submitted to the Company for direct payment. This does not
include conferences and meetings to which the Executive may attend on behalf of
the Company.
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K. Other Benefits. Other benefits may be added, as determined by the Board
of Directors.
5. BUSINESS EXPENSES AND REIMBURSEMENTS. Executive shall be entitled to
reimbursement by Genesis for ordinary and necessary business expenses incurred
by Executive in the performance of Executive's duties (collectively, "Business
Expenses"), which such Business Expenses shall be approved by Genesis in its
sole and absolute discretion, and further provided that:
A. Each such Business Expense is of a nature qualifying it as a deductible
expense on the Federal income tax return of Genesis as a business expense, and
not as deductible compensation to Executive; and
B. Executive furnishes Genesis with adequate records and other documentary
evidence required by applicable statutes, regulations and Genesis' policies for
the substantiation of such Business Expenses as a deductible business expense of
Genesis, and not as deductible compensation to Executive.
6. "KEY EMPLOYEE" INSURANCE. Genesis shall have the right to obtain on the life
of Executive, pay all premium amounts related to, and maintain, "key employee"
insurance naming Genesis as beneficiary. Selection of such insurance policy
shall be in the sole and absolute discretion of the Board. Executive shall
cooperate fully with Genesis, the Board, and the insurer in applying for,
obtaining and maintaining such life insurance, by executing and delivering such
further and other documents as Genesis, the Board and/or the insurer may request
from time to time, and doing all matters and things which may be convenient or
necessary to obtain such insurance, including, without limitation, submitting to
any physical examinations and providing any medical information required by the
insurer.
7. DUTIES. Executive shall utilize Executive's best efforts to do all of the
following:
A. PERFORMANCE REQUIREMENTS. Executive shall perform all duties in
connection with Executive's position as COO of Genesis, or as otherwise
designated by the Board, including, without limitation, COO functions, and
participation in the general overall management of Genesis, and other such
duties that as from time to time may be delegated or assigned to Executive by
the Board.
B. DIRECTION AND CONTROL OF THE BOARD. Executive shall at all times report
to, and Executive's activities shall at all times be subject to the direction
and control of, the Board. This Agreement has been submitted to and approved by
the Board of Directors.
C. ADHERENCE TO POLICIES AND RULES. Executive shall abide by all by-laws,
policies, rules and regulations as may be established from time to time by
Genesis, the shareholders of Genesis and/or the Board.
D. DEVOTION OF PROFESSIONAL EFFORTS. Executive shall devote all of
Executive's business and professional time, efforts, energy and skills to the
performance of Executive's duties pursuant to this Agreement.
(i) EXCEPTIONS. Notwithstanding Section 7(D), Executive may: (a)
invest Executive's personal assets in businesses in which Executive's
participation is
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solely that of a passive investor, provided, however, the form or manner of such
investment shall not require services on the part of Executive that conflict
with Executive's duties pursuant to this Agreement; and (b) Executive shall be
permitted to serve other public and private organizations, including without
limitation, on the board of directors of such organizations, so long as such
service does not compromise Executive's devotion of time and efforts to Genesis,
and does not present a conflict of interest with regard to Genesis.
8. TERMINATION OF EXECUTIVE'S EMPLOYMENT WITH GENESIS.
A. TERMINATION BY EXECUTIVE WITHOUT "GOOD REASON". Executive, upon at least
sixty (60) days prior written notice to Genesis, shall have the right to
terminate Executive's employment with Genesis at any time, for any reason or for
no reason. Upon such termination by Executive, Genesis shall pay Executive all
Base Salary, Annual Bonus (based on the assumption that all criteria for such
Annual Bonus were achieved), Business Expenses and Benefits which are due and
accrued through the effective date of termination and for a period of an
additional twelve (12) months. All such amounts shall be payable to Executive
within ten (10) days of the effective date of termination of Executive's
employment with Genesis.
B. TERMINATION BY EXECUTIVE FOR "GOOD REASON". Executive, effective
immediately upon written notice to Genesis, shall have the right to terminate
Executive's employment with Genesis at any time, for any one of the following
reasons (collectively, "Good Reason"):
(i) Genesis' violation or breach of any material provision of this
Agreement, including, without limitation, Executive being required to report to,
or otherwise being subject to the direction and control of any other officer(s)
and/or authority(ies) other than the Board;
(ii) material changes to Executive's title, working conditions or
duties such that Executive's power, duties or working conditions are diminished,
reduced or otherwise changed to include powers, duties or working conditions
which are inconsistent with Executive's title and duties as set forth in this
Agreement;
(iii) any action by Genesis which does or would significantly diminish
the opportunity for Executive to earn an Annual Bonus;
(iv) any action by Genesis which does or would significantly diminish
the aggregate value of the Benefits;
(v) relocation of Executive's employment location outside of the South
Florida metropolitan area;
(vi) Genesis' failure to obtain in writing assumption of its rights
and obligations pursuant to this Agreement within fifteen (15) days of a change
in Control (as defined in Section 8(G) below); and/or
(vii) the deterioration of Executive's relationship with the Board
and/or Genesis' officers, as determined by Executive in Executive's sole
discretion, so as to make the performance of Executive's duties as set forth in
this Agreement impossible or
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impracticable, following written notification by Executive setting forth the
specific nature of such Good Reason and Genesis' failure to cure to the
satisfaction of Executive within fifteen (15) days (or longer in the event that
such request cannot be reasonably responded to within a shorter period of time
and further provided that Genesis has exercised good faith and due diligence in
curing) of such notification.
Upon such termination by Executive for Good Reason, Genesis shall pay Executive
all Base Salary, Annual Bonus (based on the assumption that all criteria for
such Annual Bonus were achieved), Business Expenses and Benefits which are due,
have accrued, or will otherwise become due or accrue through the end of the term
of this Agreement (as if Executive's employment by Genesis was not prematurely
terminated). All such amounts shall be payable to Executive within ten (10) days
of the effective date of termination of Executive's employment with Genesis.
C. TERMINATION UPON EXECUTIVE'S DEATH. In the event of the death of
Executive during the term of this Agreement, Executive's employment with Genesis
shall terminate effective as of the date of Executive's death. Genesis shall pay
Executive's estate all Base Salary, Annual Bonus (based on the assumption that
all criteria for such Annual Bonus were achieved), Business Expenses and
Benefits which are due and accrued through the date of Executive's death. All
such amounts shall be payable to Executive within ten (10) days of Executive's
death.
D. TERMINATION BY GENESIS WITHOUT "CAUSE". Genesis, upon at least sixty
(60) days prior written notice to Executive, shall have the right to terminate
Executive's employment with Genesis at any time, for any reason or for no
reason. Upon such termination by Genesis, Genesis shall pay Executive all Base
Salary, Annual Bonus (based on the assumption that all criteria for such Annual
Bonus were achieved), Business Expenses and Benefits which are due, have
accrued, or will otherwise become due or accrue through the end of the term of
this Agreement (as if Executive's employment by Genesis was not prematurely
terminated) and for a period of an additional twelve (12) months. All such
amounts shall be payable to Executive within ten (10) days of the effective date
of termination of Executive's employment with Genesis.
E. TERMINATION BY GENESIS FOR CAUSE. Genesis, effective immediately upon
written notice to Executive, shall have the right to terminate Executive's
employment with Genesis at any time, for Cause (as defined below). Upon such
termination by Genesis, Genesis shall pay Executive all Base Salary, Annual
Bonus (based on the assumption that all criteria for such Annual Bonus were
achieved), Business Expenses and Benefits which are due and accrued through the
effective date of termination of Executive's employment with Genesis. All such
amounts shall be payable to Executive within ten (10) days of the effective date
of termination of Executive's employment with Genesis.
(i) CAUSE. For purposes of this Agreement, "Cause" shall mean
Executive's (a) conviction of a felony or of any crime involving moral
turpitude, and/or (b) being found guilty or otherwise pleading guilty to willful
gross neglect or willful gross misconduct in performing Executive's duties
pursuant to this Agreement.
F. TERMINATION UPON CHANGE OF CONTROL. In the event of Executive's
termination upon, due to, or as a direct or indirect result of a Change of
Control (as defined below), provided that Executive complies with Sections 8(H)
9, 10 and 12, Executive shall receive the following:
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(i) SEVERANCE. Executive shall receive all Base Salary, Annual Bonus
(based on the assumption that all criteria for such Annual Bonus were achieved),
Business Expenses and Benefits which are due, have accrued, or will otherwise
become due or accrue through the end of the term of this Agreement (as if
Executive's employment by Genesis was not prematurely terminated). All such
amounts shall be payable to Executive within ten (10) days of the effective date
of termination of Executive's employment with Genesis
(ii) ACCELERATION OF STOCK OPTIONS. Immediately prior to the effective
date of the Change of Control, one hundred percent (100%) of all outstanding
Stock Options granted by Genesis to Executive together with any options issued
in a tender offer in exchange for such outstanding Stock Options shall fully
vest and shall be exercisable by Executive for a period of one (1) year
following the effective date of the termination of Executive's employment with
Genesis. When eligible for free trading, the Company's attorney will furnish an
opinion letter at the expense of the Company.
G. DEFINITION OF "CHANGE OF CONTROL". For purposes of this Agreement,
"Change of Control" means when:
(iii) Any "person" (as defined by the Securities Exchange Act of
1934), other than a trustee or other fiduciary holding securities of Genesis
under an employee benefit plan of Genesis, becomes the "beneficial owner" (as
defined by Rule 13(d)(3) promulgated under the Securities Exchange Act of 1934),
directly or indirectly, of securities of Genesis representing fifty percent
(50%) or more of (a) the outstanding shares of common stock of Genesis or (b)
the combined voting power of Genesis' then-outstanding securities;
(iv) Genesis is party to a merger or consolidation, or series of
related transactions, which results in the then-outstanding voting securities
immediately prior thereto to fail to continue to represent at least fifty
percent (50%) of the combined voting power of Genesis' voting securities or such
surviving or other entity outstanding immediately after such merger or
consolidation;
(v) The sale of disposition of all or substantially all of Genesis'
assets, or consummation of any transaction or series of transactions having a
similar effect, unless at least fifty percent (50%) of the combined voting power
of the voting securities of the acquiring entity is held by persons who held the
option securities of Genesis immediately prior to such transaction or series of
transactions;
(vi) There occurs a change in the composition of the Board within a
two (2) year period, the result of which fewer than a majority of the directors
are incumbent directors;
(vii) The dissolution or liquidation of Genesis unless after such
liquidation or dissolution all or substantially all of the assets of Genesis are
held in an entity at least fifty percent (50%) of the combined voting power of
the voting securities of which is held by persons who held the voting securities
of Genesis immediately prior to such liquidation or dissolution; or
(viii) Any transaction or series of related transactions that has the
substantial effect of any one or more of the foregoing occurrences.
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H. RELEASE. Genesis may condition the payments required pursuant to Section
8(F) upon delivery by Executive of a signed mutual release of known and unknown
claims related to Executive's employment with Genesis.
9. NONSOLICITATION, NONCOMPETITION AND NONINTERFERENCE.
A. NONSOLICITATION. Executive shall not, at any time during the term of
this Agreement, and for six (6) months after the effective date of the
expiration or termination of the term of this Agreement, directly or indirectly,
contact or proposition, or otherwise attempt to induce, nor accept the
initiative of a third party in such regard, alone or by combining or conspiring
with a third party, any employees, agents, consultants, representatives,
contractors, vendors, suppliers, distributors, manufacturers, clients, customers
or other business contacts of Genesis to terminate or modify their relationship
with, or compete against, Genesis.
B. NONCOMPETITION. Executive shall not, at any time during the term of this
Agreement, and for six (6) months after the effective date of the expiration or
termination of the term of this Agreement, directly or indirectly, personally or
as an owner, officer, director, partner, employee, member, agent, consultant,
representative, independent contractor, or in any other capacity whatsoever of
any corporation or other entity, own, manage, operate, control or conduct any
business or enterprise involving China trade, or any other business in direct or
indirect competition with Genesis or its affiliates and subsidiaries
("Competitive Business"). Any Competitive Business conducted through Internet,
wireless or other similar telecommunication media that is viewable or usable
anywhere within the world is prohibited pursuant to this Agreement. In the event
of "termination without cause" by the Company, the Employee is not bound by this
provision. Employee shall devote his entire time, energy and skill to the
service of Company and the promotion of Company's interests, and shall use his
best efforts in the performance of his/her services hereunder. The parties agree
that Employee may not, during the Employment Period, be engaged in any other
business activity whether or not such activity is pursued for gain, profit, or
other pecuniary advantage including, without limitation, management or
management consulting activities; provided, however, Employee may invest his
personal assets in businesses where the form or manner of such investment will
not require services on the part of Employee conflicting with the duties of
Employee under this Agreement and in which his participation is solely that of a
passive investor. Employee agrees to abide by all rules and regulations
established from time to time by the CEO/President/COO and/or the Board; and all
commissions, fees or other income earned and received by Employee, if any, in
furtherance of the business of Company, or its affiliates or from any other
business or financial opportunity or endeavor in which Employee is an active
participant and not a passive investor, shall be accepted by Employee for the
account of Company, and shall be remitted to Company within three (3) days of
Employee's receipt thereof.
10. CONFIDENTIALITY.
A. THE CONFIDENTIAL INFORMATION. During the term of this Agreement,
Executive may have access to, be trusted or become acquainted with, and/or may
acquire, knowledge and/or possession or control of various confidential, trade
secret and/or proprietary information of Genesis, including, without limitation,
trade secrets, know-how, inventions (whether or not patentable), computer
programs, techniques, processes, ideas, schematics, testing procedures, internal
documentation, design and function
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specifications, product requirements, problem reports, analysis and performance
information, customer and client lists, lead sheets and other technical,
business, product, marketing and financial information, plans and data
(collectively, the "Confidential Information").
B. EXCLUSIONS FROM THE CONFIDENTIAL INFORMATION. The Confidential
Information shall not include information that: (i) becomes public without
breach of this Agreement by Executive; (ii) was received by Executive from a
third party not under any obligation of confidentiality to Genesis; or (iii) is
required to be disclosed by Executive by law or a final order of a court or
other governmental agency or authority of competent jurisdiction; provided,
however, reasonable notice prior to any such disclosure shall be given to
Genesis to allow sufficient time to obtain injunctive relief, protective order
or similar remedy.
C. NON-DISCLOSURE OF THE CONFIDENTIAL INFORMATION. At all times from the
date of this Agreement, Executive shall: (i) not use or disclose (except as
expressly authorized by this Agreement) the Confidential Information without the
prior written consent of Genesis; (ii) take all reasonable measures to maintain
the Confidential Information in confidence; (iii) disclose the Confidential
Information only to those who (a) have a confidentiality obligation in writing
with Genesis and (b) are necessary for Executive to perform Executive's duties
pursuant to this Agreement; and (iv) promptly report to Genesis any violation of
the foregoing.
D. EXECUTIVE'S ACKNOWLEDGEMENTS. Executive acknowledges and agrees that the
Confidential Information, and all copies and manifestations of the same, are,
and shall remain at all times, the exclusive property of Genesis. Executive
acknowledges and agrees that the Confidential Information is a special and
unique asset of Genesis, created and/or obtained by Genesis at considerable time
and/or expense, from which Genesis may or does derive independent economic value
from the Confidential Information not being generally known to the public or
third parties.
E. RETURN OF GENESIS PROPERTY. Executive shall, immediately upon Genesis'
request, or the effective date of the termination of Executive's employment with
Genesis: (i) all copies and manifestations of the Confidential Information that
Executive may have or has access to; (ii) all documents, other materials and
equipment provided by Genesis; and (iii) all documents and materials that
Executive prepared during Executive's employment with Genesis (collectively, the
"Genesis Property"). Executive acknowledges and agrees that the Genesis Property
is, and shall remain at all times, the exclusive property of Genesis.
11. WORKS-MADE-FOR-HIRE.
A. RESULTS DEEMED WORKS-MADE-FOR-HIRE. The results of Executive's
employment pursuant to this Agreement, including, without limitation, any works
of authorship resulting from the performance of Executive's duties during
Executive's employment with Genesis and any works in progress (collectively,
"Results"), shall be deemed works-made-for-hire for the benefit of Genesis.
Genesis shall be deemed the sole owner throughout the universe of any and all
such Results, whether or not now or hereafter known, existing, contemplated,
recognized or developed, with the right to use the same in perpetuity in any
manner Genesis, in its sole and absolute discretion, determines, without any
further payment to Executive whatsoever.
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B. Assignment and Waiver. If, for any reason, any of such Results shall not
be legally deemed a work-made-for-hire, and/or there are any rights which do not
accrue to Genesis pursuant to this Section, then Executive hereby irrevocably
assigns and agrees to assign to Genesis any and all of Executive's right, title
and interest thereto, including, without limitation, any and all copyrights,
patents, trade secrets, trademarks and/or other rights of whatsoever nature
therein, whether or not now or hereafter known, existing, contemplated,
recognized or developed, and Genesis shall have the right to use the same in
perpetuity throughout the universe in any manner it determines, in its sole
discretion, without any further payment to Executive whatsoever. To the extent
Executive has any rights in the Results that cannot be assigned in the manner
described above, Executive hereby unconditionally and irrevocably waives the
enforcement of such rights. This Section is subject to, and shall not be deemed
to limit, restrict, or constitute any waiver by Genesis of, any rights of
ownership to which Genesis may be entitled by operation of law.
C. FURTHER ASSURANCES. Executive shall, from time to time, as may be
requested by Genesis, do any and all things which Genesis may deem useful,
necessary or desirable to establish or document Genesis' exclusive ownership of
any and all rights in any Results, including, without limitation, the execution
of appropriate invention, copyright, trademark, and/or patent applications or
assignments.
12. NON-DISPARAGEMENT. Executive shall not, in any communications in any media,
criticize, ridicule or make any statement which disparages or is derogatory of
Genesis, Genesis' products or services, or any of Genesis' present, former or
future shareholders, officers, directors, employees, affiliates and/or
subsidiaries.
13. EQUITABLE RELIEF. Genesis has entered into this Agreement in order to obtain
the benefit of Executive's unique skills, talent, and experience. The parties
enter into this Agreement with the understanding that the provisions of Sections
1(A), 9, 10, 11 and 12 are material terms of this Agreement, and that the Base
Salary to be paid to Executive pursuant to this Agreement has been based in part
on the value to Genesis of those Sections. Executive acknowledges and agrees
that any breach or threatened breach of Section 1(A), 9, 10, 11 or 12 will
result in irreparable damage to Genesis and, accordingly, Genesis may obtain
injunctive relief, a decree of specific performance and/or any other equitable
relief for any breach or threatened breach of Sections 1(A), 9, 10, 11 or 12, in
addition to any other remedies available to Genesis, without being required to
show any actual damage, or to post an injunction bond.
14. REASONABLENESS OF RESTRICTIONS. The parties agree that the restrictions and
remedies contained in Section 9, 10, 11, 12 and 13 are reasonable, recognizing
the competitive nature of the business of Genesis, the nationwide and worldwide
scope of similar businesses, the specialized expertise and knowledge Executive
possesses, the unique and extraordinary nature of Executive's services, and the
importance to Genesis of the Confidential Information to which Executive may be
exposed during Executive's employment with Genesis. In addition, Executive
hereby acknowledges and agrees that the faithful observance by Executive of the
covenants contained in this Agreement will not cause Executive any undo
hardship, financial or otherwise, and that the enforcement of each of the
covenants contained in Sections 1(A), 9, 10, 11 and 12 will not impair
Executive's ability to obtain employment. Therefore, it is Executive's intention
and the intention of Genesis that the restrictions and remedies contained in
Sections 1(A), 9, 10, 11, 12 and 13 shall be enforceable to the fullest extent
permissible by law. If it shall be
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found by a court of competent jurisdiction that any such restriction or remedy
is unenforceable but would be enforceable if some part thereof were deleted or
the period or geographical area of application reduced, then such restriction or
remedy shall apply with such modification as shall be necessary to make it
enforceable. The period of time during which Executive is prohibited from
engaging in certain activities pursuant to this Agreement shall be extended by
the length of time during which Executive is in breach of the terms of any
provision of this Agreement.
15. INDEMNIFICATION.
A. INDEMNIFICATION OF EXECUTIVE. Genesis agrees that if Executive is made a
party, or is threatened to be made a party, to any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "Proceeding"), by
reason of the fact that Executive is or was a director, officer or employee of
Genesis or is or was serving at the request of Genesis as a director, officer,
member, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, whether or not the basis of such Proceeding is Executive's alleged action
in an official capacity while serving as a director, officer, member, employee
or agent, Executive shall be indemnified and held harmless by Genesis to the
fullest extent legally permitted or authorized by Genesis' Articles of
Incorporation, Bylaws or resolutions of the Board or, if greater, by the laws of
the State of Florida, against all cost, expense, liability and loss (including,
without limitation, attorney's fees, judgments, fines, ERISA excise taxes or
other liabilities or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by Executive in connection therewith, and such
indemnification shall continue as to Executive even if Executive has ceased to
be a director, member, employee or agent of Genesis or other entity and shall
inure to the benefit of Executive's heirs, executors and administrators.
B. ADVANCEMENT OF COSTS. Genesis shall advance to the Executive all
reasonable costs and expenses incurred by Executive in connection with a
Proceeding within twenty (20) days after receipt by Genesis of a written request
for such advance. Such request shall include an undertaking by Executive to
repay the amount of such advance if it shall ultimately be determined that
Executive is not entitled to be indemnified against such costs and expenses;
provided that the amount of such entitled to be indemnified against such costs
and expenses; provided that the amount of such obligation to repay shall be
limited to the after-tax amount of any such advance except to the extent
Executive is able to offset such taxes incurred on the advance by the tax
benefit, if any, attributable to a deduction for the repayment.
C. NO PRESUMPTION OF STANDARD OF CONDUCT. Neither the failure of Genesis
(including the Board, independent legal counsel or stockholders) to have made a
determination prior to the commencement of any Proceeding concerning payment of
amounts claimed by Executive under Section 15(B) above that indemnification of
Executive is proper because he has met the applicable standard of conduct, nor a
determination by Genesis (including the Board, independent legal counsel or
stockholders) that Executive has not met such applicable standard of conduct,
shall create a presumption in any judicial proceeding that Executive has not met
the applicable standard of conduct.
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D. D & O INSURANCE. Once Genesis can afford and the Board approves, it
shall maintain a directors' and officers' liability insurance policy covering
Executive in an amount of no less than $1 million. 16. SURVIVAL. Executive's
obligations under Sections 1(A), 9, 10, 11, 12, 15 and 17 shall remain in full
force and effect for the entire period provided in such Sections,
notwithstanding the expiration or termination of Executive's employment with
Genesis.
17. MISCELLANEOUS.
A. AMENDMENTS. The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a writing signed by both
Genesis and Executive and making specific reference to this Agreement.
B. ASSIGNABILITY: BINDING NATURE. This Agreement shall be binding upon and
inure to the benefit of Genesis and Executive and their respective successors,
heirs (in the case of Executive) and assigns. Rights or obligations of Genesis
pursuant to this Agreement may be assigned or transferred by Genesis pursuant to
a merger or consolidation in which Genesis is not the continuing entity, or the
sale or liquidation of all or substantially all of the assets of Genesis,
provided that the assignee or transferee is the successor to all or
substantially all of the assets of Genesis and such assignee or transferee
assumes the liabilities, obligations and duties of Genesis, as contained in this
Agreement, either contractually or as a matter of law. Genesis further agrees
that, in the event of a sale of assets or liquidation as described in the
preceding sentence, it shall take whatever action it reasonably can in order to
cause such assignee or transferee to expressly assume the liabilities,
obligations and duties of Genesis hereunder. No rights or obligations of
Executive under this Agreement may be assigned or transferred by Executive other
than his rights to compensation and Benefits, which may be transferred only by
will or operation of law.
C. BINDING EFFECT. All of the terms and provisions of this Agreement,
whether so expressed or not, shall be binding upon, inure to the benefit of, and
be enforceable by the parties and their respective administrators, executors,
legal representatives, heirs, successors and permitted assigns.
D. SEVERABILITY. If any part of this Agreement or any other Agreement
entered into pursuant to this Agreement is contrary to, prohibited by, or deemed
invalid under, applicable law or regulation, such provision shall be
inapplicable and deemed omitted to the extent so contrary, prohibited or
invalid, but the remainder of this Agreement shall not be invalidated thereby
and shall be given full force and effect so far as possible.
E. WAIVERS. The failure or delay of any party at any time to require
performance by the other party of any provision of this Agreement shall not
affect the right of such party to require performance of that provision or to
exercise any right, power or remedy hereunder, and any waiver by any party of
any breach of any provision of this Agreement shall not be construed as a waiver
of any continuing or succeeding breach of such provision, a waiver of the
provision itself or a waiver of any right, power or remedy under this Agreement.
No notice to or demand on any party in any case shall, of itself, entitle such
party to any other or further notice or demand in similar or other
circumstances.
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F. Notices. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing (including
electronic transmission) and shall be (as elected by the party giving such
notice) hand delivered by messenger or courier service, electronically
transmitted, or mailed (airmail if international) by registered or certified
mail (postage prepaid), return receipt requested, addressed to:
If to Executive:
000 Xxxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Telefax: (000) 000-0000
If to Genesis: With a copy to:
Genesis Technology Group, Inc. Gunster, Yoakley & Xxxxxxx, P.A.
000 Xxxxxx Xxxx, Xxxxx 000 000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000 Xxxx
Xxxx Xxxxx, XX 33498 Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Telefax: (000) 000-0000 Telefax: (000) 000-0000
Attention: Chairman Attention: Xxxxx X. Xxxxx, Esq.
or to such other address as any party may designate by notice complying with the
terms of this Section. Each such communication shall be deemed delivered (i) on
the date delivered if hand delivered; (ii) on the date of transmission with
confirmed answer back if by electronic transmission; and (iii) on the date upon
which the return receipt is signed or delivery is refused or the notice is
designated by the postal authorities as not deliverable, as the case may be, if
mailed.
G. GOVERNING LAW. This Agreement and all transactions contemplated by this
Agreement shall be governed by, and construed and enforced in accordance with,
the internal laws of the State of Florida, without regard to principles of
conflicts of laws.
H. JURISDICTION AND VENUE. The parties acknowledge that a substantial
portion of the negotiations, anticipated performance and execution of this
Agreement occurred or shall occur in Palm Beach County, Florida. Any civil
action or legal proceeding arising out of or relating pursuant to this Agreement
shall be brought in the courts of record of the State of Florida in Palm Beach
County or the United States District Court, Southern District of Florida. Each
party consents to the jurisdiction of such court in any such civil action or
legal proceeding and waives any objection to the laying of venue of any such
civil action or legal proceeding in such court. Service of any court paper may
be effected on such party by mail or in such other manner as may be provided
under applicable laws, rules of procedure or local rules.
I. ENFORCEMENT COSTS. If any legal action or other proceeding is brought
for the enforcement of this Agreement, or because of an alleged dispute, breach,
default or misrepresentation in connection with any provisions of this
Agreement, the successful or prevailing party or parties shall be entitled to
recover reasonable attorney's fees, court costs and all reasonable expenses even
if not taxable as court costs (including, without limitation, all such fees,
costs and expenses incident to appeals), incurred in that action
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or proceeding, in addition to any other relief to which such party or parties
may be entitled.
J. HEADINGS FOR REFERENCE ONLY. The headings contained in this Agreement
are for convenience of reference only and shall not limit or otherwise affect in
any way the meaning or interpretation of this Agreement.
K. ADVICE OF COUNSEL. EACH PARTY ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY
ITS OWN COUNSEL, OR HAS HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, WITH
RESPECT TO THIS AGREEMENT.
L. CONSTRUCTION. This Agreement is a negotiated document and shall not be
construed more strongly against any party regardless of who is responsible for
its preparation.
M. AGREEMENT MAY BE SIGNED IN COUNTERPARTS. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an original, but all
of which taken together shall constitute one and the same instrument.
Confirmation of execution by electronic transmission of a facsimile signature
page shall be binding on a party so confirming.
N. ENTIRE AGREEMENT. This Agreement represents the entire understanding and
agreement between the parties with respect to its subject matter, replaces and
supersedes all other previous employment contracts, negotiations, understandings
and representations (if any) made by and between the parties.
Genesis and Executive have each executed this Agreement as of the day and
year first above written.
GENESIS:
GENESIS TECHNOLOGY GROUP, INC.
/s/ Xxxxxxx Xxxxxxx
-------------------
Print Name: Xxxxxxx X. Xxxxxxx
Title: Chief Operating Officer & Director
EXECUTIVE:
/s/ Xxxx X. Xxxxxxx
-------------------
Print Name: Xxxx X. Xxxxxxx
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