EXHIBIT 10.8
TERMINATION AGREEMENT
This Termination Agreement is entered into THIS 18 DAY OF JUNE, 1997, by
and between Ezcony Interamerica Inc. and its subsidiaries (collectively,
"Employer") and Xxxx Xxxxxxx ("Employee").
RECITALS
WHEREAS, Employee is an officer of all entities included within the
definition of "Employer" and is a director of several such entities, including
Ezcony Interamerica Inc.;
WHEREAS, Employee and Employer have decided terminate their relationship as
it currently exists and provide for a transitional relationship THROUGH
DECEMBER 31, 1999.
COVENANTS
In consideration of the mutual covenants set forth below, Employer and
Employee agree as follows:
1. Employee's rights and responsibilities as an employee and officer of all
entities included within the definition of "Employer" and as a director of all
such entities other than Ezcony Interamerica Inc. are terminated effective the
close of business on JUNE 30,1997, and Employee hereby resigns from all such
positions effective that date. Until such date, however, Employee shall continue
in his current capacities and Employer shall continue to pay Employee his
current rate of salary and provide Employee his current fringe benefits, which
benefits consist OF HEALTH INSURANCE FOR EMPLOYEE AND HIS ELIGIBLE SPOUSE AND
DEPENDENT CHILDREN, LIFE AND DISABILITY INSURANCE, TWO VEHICLES AND CELLULAR
PHONE SERVICES (HEREUNDER COLLECTIVELY REFERRED TO AS THE "BENEFITS").
2. FROM JULY 1 THROUGH DECEMBER 31, 1997, EMPLOYEE SHALL SERVE AS A
CONSULTANT TO EMPLOYER ON THE FOLLOWING TERMS:
a. Upon reasonable notice, Employee shall make himself available for a
maximum of ten (10) hours per week to provide consulting services (such as
rendering advice to Employer regarding the marketing of new products or the
penetration of new markets by Employer), as needed by Employer, which
consulting services shall be rendered in Employer's office in Miami, Florida, if
Employer so requires;
B. EMPLOYER SHALL PAY EMPLOYEE $22,900 PER MONTH (PAYABLE TWICE MONTHLY
IN EQUAL INSTALLMENTS AS A CONSULTANT for the months of July through November,
and shall provide Employee with all Benefits for the same months; and
c. Employer shall have no obligation to pay Employee any monetary
compensation for the month of December 1997, but shall provide Employee with
the Benefits for that month.
3. FROM JANUARY 1, 1998 THROUGH DECEMBER 31, 1999, EMPLOYEE SHALL SERVE AS
A CONSULTANT TO EMPLOYER ON THE FOLLOWING TERMS:
a. Upon reasonable notice, Employee shall make himself available for a
maximum of eight (8) hours per week to provide consulting services (such as
rendering advice to Employer regarding the marketing of new products or the
penetration of new markets by Employer), as needed by Employer, which consulting
services may be rendered at Employer's office in Panama, as Employee anticipates
he will be living in Panama during this period of time;
B. EMPLOYER SHALL PAY EMPLOYEE $9,541 PER MONTH (PAYABLE TWICE MONTHLY)
IN EQUAL INSTALLMENTS) AS A CONSULTANT FOR THE MONTHS OF JANUARY 1998 THROUGH
DECEMBER 1999; AND
c. Employer shall provide Employee and his spouse and dependent children
with health insurance coverage in Panama similar to that which it provides to
its other Panama-based employees for the months of January 1 through June 30,
1998, but shall have no obligation to provide any other Benefits to Employees
after December 31, 1997.
4. On January 1, 1998, Employer shall pay Employee the following sums:
a. $25,000 as compensation for Employee's loss of use of the two
company vehicles; provided to him as a fringe benefit; and
b. $7,270.11 REPRESENTING THE FULL VALUE, BASED ON A PER DIEM RATE OF
$1053.64, OF ALL OF EMPLOYEE'S ACCRUED BUT UNUSED VACATION TIME AS OF JUNE 30,
1997 (EMPLOYEE SHALL NOT ACCRUE ANY VACATION TIME AFTER THAT DATE AND SHALL NOT
RECEIVE ANY COMPENSATION FOR ANY UNUSED SICK TIME OR PERSONAL DAYS).
5. The parties anticipate that Employee will remain a director of Ezcony
Interamerica Inc. due to his family's stock holdings in that company. It is
agreed that as of July 1, 1997, Employee shall be treated as a non-employee
director of such company for PURPOSES OF DIRECTOR COMPENSATION (WHICH SHALL BE
PAID TO EMPLOYEE IN ADDITION TO THE AMOUNTS TO BE PAID TO EMPLOYEE PURSUANT TO
PARAGRAPHS 2, 3 AND 4 ABOVE). And the pending balance of the 1996 Bonus
which is $38,000.00.
6. EMPLOYEE SHALL, ON OR BEFORE JUNE 30, 1997, EXECUTE THE EMPLOYER'S
STANDARD NON-COMPETE AND CONFIDENTIALITY AGREEMENT, in the form attached hereto
as Exhibit "A", which agreement shall have a non-compete term of three years to
run from July 1, 1997.
7. Employee shall remain a guarantor on all of Employer's credit on which
he is currently a guarantor, but he shall be under no obligation to become a
guarantor on any additional credit Employer might secure after the date this
Agreement is executed. For purposes of this agreement, additional credit shall
not include renewals of existing credit on which there are no materially adverse
changes in credit terms. Employee shall receive no additional compensation for
serving as a guarantor as described herein.
8. EMPLOYER HEREBY WAIVES THE REQUIREMENT THAT EMPLOYEE EXERCISE VESTED
OPTIONS WITHIN NINETY DAYS AFTER TERMINATION AND ALSO HEREBY FULLY VESTS
EMPLOYEE IN HIS EXISTING OPTIONS. ALL OF EMPLOYEE'S OPTIONS, TO THE EXTENT NOT
EXERCISED, SHALL EXPIRE AT THE CLOSE OF BUSINESS ON JUNE 28, 2002. EMPLOYEE'S
OPTIONS SHALL CONTINUE TO BE SUBJECT TO THE TERMS AND CONDITIONS OF THE
AMENDED AND RESTATED EZCONY INTERAMERICA INC. 1992 STOCK OPTION PLAN.
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9. Except for obligations arising pursuant to this Agreement, Employer and
Employee hereby mutually release and discharge each other from all civil
liabilities, claims, causes of action, contracts, liabilities and obligations of
any kind that one may owe to the other, or that one may claim against the other,
whether known or unknown, reported or unreported, relating to or arising from
Employee's employment by Employer and services as an officer or director of
Employer, which either party ever had; may have had, or has against the other
party, to the date of this Agreement.
10. Press releases in the form attached hereto as Exhibit "B" related to
the termination of his Employee's employment with Employer or his resignation as
an officer or director of employer shall be used by Employer, subject only to
the Employer's SEC disclosure obligations.
11. Any services of Employee requested by Employer that exceed those
required by this Agreement will require Employee's prior consent which
Employee may refuse to grant for any reason whatsoever, and reasonable
compensation.
12. This Agreement constitutes the entire agreement between the parties.
Each party represents to the other that no promises, inducements or
representations were made to it that are not incorporated into this Agreement.
13. Employee acknowledges that he has been advised to and has been given
an opportunity to consult counsel of his choosing before executing this
Agreement. Employee understands that this Agreement materially affects his legal
rights. Employee represents to employer that he understands this Agreement and
all of its terms, and that he is executing this Agreement of his own free will
and without duress of any kind.
14. Other than the obligations of the non-compete and confidentiality
agreement described in paragraph six above, all covenants of this agreement
are dependent in nature and, therefore, any material breach shall excuse future
performance by the non-breaching party.
/s/ XXXX XXXXXXX Date: 6/18/97
-------------------------- --------
Xxxx Xxxxxxx
/s/ XXXX XXXXX Date: 6/27/97
-------------------------- --------
Xxxx Xxxxx, as President
of Ezcony Interamerica, Inc.,
as President of Ezcony International,
Inc., as President of Ezcony Trading
Corp., and as Secretary of New World
Interactive, Inc.
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CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
This Agreement is between Ezcony Interamerica Inc. on behalf of itself and
its direct and indirect subsidiaries as more particularly set forth in Recital
"A" below (as context permits, individually or collectively the "Corporation"),
and Xxxx Xxxxxxx (the "Employee").
RECITALS
A. Ezcony Interamerica Inc. and its direct and indirect subsidiaries
(including but not limited to Ezcony International Corp., Ezcony Trading Corp.,
New World Interactive Corp., New World Interactive, Inc. and Ezcony Cellular,
Inc.) are engaged in the business of buying and selling consumer and other
electronics, hardware and software around the world. Of critical importance to
the Corporation's operations are the identity of its suppliers and customers,
and knowledge of the price and terms on which it buys and sells, and its
localization process for CD Rom and other software. In addition to this
confidential information, the Corporation is also the owner of certain other
confidential information, as defined herein, which is a valuable and unique
asset of the Corporation and which is essential for the continuation of the
business of the Corporation, including but not limited to localization processes
for CD Rom software and the end products of such processes.
B. Employee is and officer and director of Ezcony Interamerica Inc. and a
director of one or more of the entities that are included in the term
"Corporation" as defined above, including Ezcony Interamerica Inc.
C. During the relationship between the Employee and the Corporation, the
Employee was exposed to or entrusted with all or part of the Confidential
Information to of the Corporation so that the Employee could perform the
services contemplated in his relationship with the Corporation.
D. Employee and the Corporation have decided to terminate their current
relationship effective the CLOSE OF BUSINESS JUNE 30, 1997 except that Employee
will remain a director of Ezcony Interamerica Inc.
E. The Corporation has one or more legitimate business interests in
maintaining the secrecy and limiting the disclosure of its Confidential
Information, namely that such Confidential Information constitutes trade secrets
or is otherwise considerably valuable to the Corporation and is necessary for
maintaining the Corporation's relationships with prospective or existing
customers or clients and is further necessary to maintain the Corporation's
established goodwill.
F. The parties acknowledge that as a result of the Employee's relationship
with the Corporation, the Employee acquired knowledge of the Confidential
Information which will give the Employee, or any subsequent employer of the
Employee which competes with the Corporation, and unfair commercial advantage
over the Corporation if the Employee should engage in any competitive practice
with the Corporation, as defined herein.
G. The parties desire to provide assurance to the Corporation for the
safeguarding of the Confidential Information.
AGREEMENT
In consideration of the mutual covenants contained herein and other good
and valuable consideration, the sufficiency and receipt of which is hereby
acknowledged, the parties agree as follows:
1. RECITALS. The foregoing recitals are true and correct and are
incorporated herein.
2. CONFIDENTIAL INFORMATION. The Employee acknowledges that in and as a
result of the Employee's relationship with the Corporation, the Employee made
use of, acquired and added to confidential information of a special and unique
nature as set forth in Recital "A" above, and which also includes such matters
as the Corporation's patents, copyrights, proprietary information, processes for
and the end products of CD Rom localization, trade secrets, systems, procedures,
manuals, confidential reports, and lists of customers or clients, which are
deemed for all purposes confidential and proprietary, as well as the nature and
type of services the Corporation renders, the equipment and methods used by the
Corporation or the customers or clients of the Corporation, and the fees that
the customers or clients pay to the Corporation (the "Confidential
Information"). The Employee acknowledges that the Confidential Information is a
valuable, special and unique asset of the Corporation's business which is
essential to the continuation of the business of the Corporation.
3. CONFIDENTIALITY. The Employee agrees to keep in strict secrecy and
confidence any and all Confidential Information the Employee assimilated or to
which the Employee had access during his relationship with the Corporation that
has not been publicly disclosed and is not a matter of common knowledge with
respect to the business in which the Corporation is engaged. The Employee agrees
that he will not, without the Corporation's prior written consent, disclose any
such Confidential Information to any third person or entity.
4. EMPLOYEE'S COVENANTS TO THE CORPORATION. The Employee makes the
following covenants with the Corporation (the "Employee's Covenants"):
(a) The Employee covenants to the Corporation and agrees that the
employee shall not, directly or indirectly, divulge or disclose for any purpose
whatsoever any Confidential Information that the Employee has obtained or which
has been disclosed to him as a result of the Employee's relationship with the
Corporation.
(b) The Employee covenants to the Corporation and agrees that for a
period of three (3) years after July 1, 1997 (7/1/97-6/30/2002), the Employee
shall not, directly or indirectly, in the states of
California, Texas and Florida and in Central and South America, Mexico, or the
Caribbean basin, enter into or engage in a business which competes with any
business engaged in by the Corporation during the one year period preceeding the
date of this Agreement, either as an individual on his own account, or as a
partner or employee for any person, or as an officer, director, or stockholder
of a corporation, or otherwise.
The Employee shall have the right to request from the Corporation in
advance a statement from the Corporation that a contemplated business or
position is not competing within the terms of this Agreement, and if the
Employee receives such a statement or if within 30 days of such a request the
employee does not receive a negative reply from the Corporation, the Employee
may assume and the Corporation shall be deemed to have agreed that the
contemplated business or accepting the position. It is specifically agreed, as
an exception to the prohibitions of the first paragraph of this section 5(b),
that if Employee works for a "publisher," such work shall not constitute a
violation of this paragraph 5(b). This exception shall not relieve Employee of
any of the other covenants contained in this section 5. For purpose of this
exception, a "publisher" is a company that creates and manufactures CD Rom or
other software and sells licenses such products to the Corporation or companies
at the Corporation's level in the distribution process, but that does not
compete with the Corporation or sell such products to the Corporation's
customers, or purchasers at the level of the Corporation's customers in the
distribution process.
(c) The Employee covenants to the corporation and agrees that for a
period of three (3) years after July 1, 1997, the Employee will not, directly or
indirectly, as an independent contractor, employee, consultant, partner, joint
venturer, or otherwise, solicit any of the employees of the Corporation or its
affiliates to terminate their employment with the Corporation.
(d) The employee covenants to the Corporation and agrees that for a
period of three (3) years after July 1, 1997, the employee will not, directly or
indirectly, as an independent contractor, employee, consultant, partner, joint
venturer, and otherwise, solicit any customer of the Corporation which the
Employee knows or reasonably believes to be a major customer of the Corporation,
as defined below, without the Corporation's prior written consent. "Major
customer" MEANS ANY CUSTOMER WHICH HAS A LINE OF CREDIT FROM THE CORPORATION OF
$300,000 OR MORE.
(e) The period of time during which the Employee is prohibited from
engaging in such business practices pursuant to the above paragraphs shall be
extended by any length of time during which the Employee is in breach of such
covenants.
(f) the parties hereto understand that each if the Employees Covenants
is a separate and essential element of this Agreement, and that, but for the
agreement of the Employee to comply with such covenants, the Corporation would
not have agreed to enter into the Termination Agreement by and between the
Employee and the Corporation dated on or about of even date herewith
(the "Termination Agreement"). Such covenants by the Employee shall be
construed as
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covenants made by the Employee to the Corporation that are independent of any
other provision in this Agreement.
5. REASONABLENESS OF RESTRICTIONS.
(a) The Employee has carefully read and considered the Employee's
Covenants, and agrees that the restrictions set forth therein, including but not
limited TO THE TIME PERIOD AND GEOGRAPHICAL RESTRICTIONS, are fair and
reasonable and are required for the protection of the legitimate business
interests of the Corporation with respect to its customers or clients, as set
forth in Recital "E" above.
(b) Notwithstanding the above, the Employee and the Corporation agree
that if any portion of the Employee's Covenants are held to be unreasonable,
arbitrary, against public policy, or otherwise unenforceable, then such portion
shall be considered divisible both as to time and geographical area. The parties
further agree that if any court of competent jurisdiction determines the
specified time period or the specified geographical area applicable to Section 5
above to be unreasonable, arbitrary, against public policy, or otherwise
unenforceable, then the Corporation may enforce against the Employee a lesser
time period or geographical area determined by a court of competent jurisdiction
to be reasonable, non-arbitrary, not against public policy, and otherwise
enforceable. The parties agree that the foregoing covenants are appropriate and
reasonable when considered in light of the nature and extent of the business the
Corporation conducts.
6. SPECIFIC PERFORMANCE IN CASE OF BREACH OF THE EMPLOYEE'S COVENANTS. The
Employee agrees that damages at law will be an insufficient remedy to the
Corporation in the event the Employee violates the Employee's Covenants, and
that the Corporation shall be entitled, upon application to a court of competent
jurisdiction, to obtain injunctive relief to enforce the provisions of such
paragraphs, which relief shall be in addition to any other rights or remedies
available to the Corporation.
7. COMPLIANCE WITH OTHER AGREEMENTS. The Employees warrants that his
execution of this Agreement and his performance of any obligations hereunder
will not conflict with, result in the breach of any provision of, cause the
termination of, or constitute a default under any agreement to which the
Employee is a party or by which the Employee is or may be bound.
8. CONSOLIDATION, MERGER, OR SALE OF ASSETS. Nothing in this Agreement
shall prevent the Corporation from consolidating or merging into or with, or
transferring all or substantially all of its assets to, another business or
entity that assumes this Agreement and all obligations and undertakings of the
Corporation hereunder. Upon such a consolidation, merger, or transfer of assets
and assumption, the term "the Corporation" as used herein shall mean such other
business or entity and this Agreement shall continue in full force and effect,
subject to the Employee's right of termination as may be provided herein.
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9. NOTICE. Any notice to the Employee required by this Agreement shall be
sent via certified mail, return receipt requested, or hand-delivered or given to
the Employee by the Corporation at the Employee's address maintained in the
Corporation's files and used by the Corporation for the purpose of providing
federal income tax reporting information to the Employee as required by law. Any
notice to the Corporation required by this Agreement shall be sent via certified
mail, return receipt requested or, hand-delivered to the Corporation at 0000
X.X. 00xx Xxxxxx, Xxxx 0, Xxxxx, Xxxxxxx 00000, Attn: Xxxx Xxxxx.
Each party, by five days' prior written notice to the other party in the
aforesaid manner, may change the address to which notice shall be sent.
10. ATTORNEYS' FEES. If any action at law or in equity, including an action
for declaratory relief, is brought to enforce or interpret the provisions of
this Agreement, the prevailing party shall be entitled to recover its reasonable
attorney's fees, whether at pretrial, trial or appellate levels, which may be
set by the court in the same action or in a separate action brought for that
purpose, including costs and fees for investigation and collection of any amount
awarded in such action, in addition to any other relief to which the party may
be entitled.
11. GOVERNING LAW AND VENUE. This Agreement shall be governed by and
construed under the substantive laws of the State of Florida, notwithstanding
any choice of laws provision to the contrary. Any suit or any other action
brought by either party in connection with this Agreement shall be brought only
in Dade County, Florida.
12. BINDING EFFECT. Execution of this Agreement by any one of the entities
within the term "Corporation" is intended to be for the benefit of all such
entities.
13. ENTIRE AGREEMENT. This Agreement and the Termination Agreement to which
it is an exhibit, contain the entire agreement between the parties, and
supersedes any other agreement, oral or written, entered into between the
parties.
14. REFERENCES TO GENDER AND SINGULAR. The use in this Agreement of any
gender shall be deemed to include the other gender. The use of the singular
shall be deemed to include the plural, and vice-versa.
15. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall constitute an original Agreement, but all of which shall be
deemed to constitute one instrument.
16. DESCRIPTIVE HEADINGS. The descriptive headings herein have been
inserted for convenience only and shall not be deemed to limit or otherwise
affect the construction or interpretation of this Agreement.
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17. PROPERTY OF THE CORPORATION. Employee hereby acknowledges and agrees
that any and all information, software, localization process or application,
copyrighted material, trademark or other tangible or intangible property used,
developed, written or acquired by or with the assistance of Employee during the
term of Employee's relationship with the Corporation are the sole and exclusive
property of the Corporation or affiliated entity for whom Employee was working
at the direction of the Corporation, and Employee has absolutely no right, title
or interest thereto or therein.
WHEN FULLY EXECUTED, THIS DOCUMENT WILL CONSTITUTE A BINDING LEGAL DOCUMENT,
WHICH MAY AFFECT OR RESTRICT EMPLOYEE'S EMPLOYMENT WITH OTHER EMPLOYERS IN THE
FUTURE. YOU SHOULD TAKE THIS DOCUMENT TO YOUR LEGAL ADVISOR FOR COMPLETE REVIEW
PRIOR TO EXECUTION.
CORPORATION:
By: /s/ XXXX XXXXX
----------------------
Date: 6/27/97
EMPLOYEE:
By: /s/ XXXX XXXXXXX
---------------------- Witnessses as to Employee:
Date: 6/18/97 Name: XXXXX XXXXXXX
-----------------------------------
Address: 0000 X.X. 000 Xxx., Xxxxx 00000
-------------------------------
Name: ILLEGIBLE
-----------------------------------
Address: 0000 Xxxx Xx.
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