EXHIBIT 10.12
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is made as of the
10th day of March, 1999 between XXXXXXX X. XXXXXXXX, III, an individual resident
of the State of Florida ("Executive"), and INTELLIGENT LIFE CORPORATION, a
Florida corporation with its principal place of business located in North Palm
Beach, Florida (the "Company").
WHEREAS, the Company desires to employ Executive as the Chief Executive
Officer of the Company, and Executive desires to accept said employment from the
Company; and
WHEREAS, the Company and Executive have agreed upon the terms and
conditions of Executive's employment with the Company and the parties desire to
express the terms and conditions in this employment agreement.
WHEREAS, the Company and the Executive have entered into that certain
Restricted Stock Grant between the Company and Executive dated as of March 23,
1998; that certain Promissory Note dated March 23, 1998, that certain Severance
Agreement between the Company and the Executive dated as of March 23, 1998 (the
"Severance Agreement"), that certain Noncompetition Agreement between the
Company and the Executive dated as of November 28, 1998 (the "Noncompetition
Agreement"), that certain Employee Nondisclosure and Developments Agreement
between the Company and Executive dated as of November 28, 1998 ("Nondisclosure
Agreement") and that certain Cancellation and Stock Purchase Agreement between
the Company and the Executive dated March 10, 1999 (the "Cancellation
Agreement") (the Severance Agreement, Noncompetition Agreement, Nondisclosure
Agreement and the Cancellation Agreement and all other prior agreements between
the Company and Executive not otherwise stated herein are collectively referred
to as "Prior Agreements") and desire to more fully expand the terms and
conditions of the Executives employment with the Company.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and accepted, the parties hereby
agree as follows:
1. Employment of Executive. The Company hereby employs Executive, and
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Executive hereby accepts such employment from the Company, under the terms of
this Agreement for a period beginning on the Effective Date and terminating on
the second anniversary thereof (the "Term"), unless this Agreement is otherwise
extended or terminated pursuant to the provisions of Section 6 hereof. This
Agreement replaces and supersedes all Prior Agreements as herein defined, and
is, in its entirety, the sole agreement of employment between the Company and
the Executive.
2. Duties. During the Term of this Agreement, Executive shall be employed as
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the Chief Executive Officer of the Company. Executive's responsibilities as
Chief Executive Officer shall include the management of the affairs of the
Company, including without limitation, oversight of the Company's strategic
technology and market development programs, and other duties as may be assigned
to Executive by the Board of Directors from time to time. The Executive shall
devote his full business time, attention, skill, energies and efforts to the
diligent performance of his duties hereunder, except during periods of illness
or periods of vacation and leaves of absence consistent with the Company's
policy.
3. Base Salary. Executive's base salary commencing on March 10, 1999 and
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during the Term and any Renewal Term(s) (as defined below) of this Agreement
shall be equal to $275,000 per annum (the "Base Salary"), which amount may be
subject to adjustment annually at the discretion of the Company. The Base Salary
shall be paid to Executive by the Company monthly in arrears or in accordance
with the Company's regular payroll practice as in effect from time to time.
4. Annual Bonus. Immediately following completion of each fiscal year of the
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Company and no later than four (4) months after such date, Executive may
receive, in the sole discretion of the Board of Directors, an annual bonus
("Annual Bonus") for such year in addition to the Base Salary.
5. Benefits and other Compensation. Commencing on the date of this Agreement
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and during the Term of this Agreement, the Company shall provide the benefits
described below.
(a) Management Stock Incentive Program. The Executive shall be eligible to
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participate in the Company's stock option, stock purchase or other stock
incentive plan(s) to the extent generally available to executive officers of the
Company and shall be eligible for the grant of stock options, restricted stock
and other awards thereunder as determined by the Board of Directors. The
Executive shall be granted an option under the Intelligent Life Corporation 1999
Equity Compensation Plan (the "Equity Plan") to acquire 71,700 shares of the
Company's common stock at an exercise price of $14.84 per share, subject to such
other terms as specifically provided in the Incentive Stock Option Grant, dated
of even date herewith.
(b) Vacation. Executive shall receive four (4) weeks paid vacation time
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each year.
(c) Medical Insurance. The Company shall provide Executive with medical
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insurance coverage for Executive and his immediate family in accordance with and
subject to the terms of the Company's medical insurance plan, if any, as it
exists from time to time.
(d) Expenses. Executive shall be reimbursed monthly by the Company for the
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ordinary and necessary business expenses incurred by him in the performance of
his duties for the Company; provided that Executive shall first document said
business expenses in the manner generally required by the Company under its
policies and procedures, and in any event, the manner required to meet
applicable regulations of the Internal Revenue Service relating to the
deductibility of such expenses.
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6. Term and Termination. Term and Termination are as follows:
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(a) The term of this Agreement (the "Term") shall commence on the Effective
Date and end on the second anniversary thereof. The term shall be automatically
extended for successive two (2) year periods ("Renewal Term(s)") unless either
party hereto delivers to the other written notice three (3) months prior to the
end of the Term of its desire to terminate this Agreement.
(b) Any termination of employment, including an Involuntary Termination of
Employment, shall be communicated by a written notice of termination (a "Notice
of Termination") in accordance with Section 21 hereof.
7. Severance Compensation upon Termination. In the event of Executive's
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Involuntary Termination of Employment, the Company shall pay to Executive, upon
the Executive's execution and delivery of a release in form and substance
reasonably satisfactory to the Chairman of the Board, subject to customary
employment taxes and deductions, compensation as follows:
(a) If such Involuntary Termination of Employment occurs during the first,
second, third or fourth year of Executive's employment, the Company shall pay
Executive his Base Salary and Benefits (as described in Section 5 hereof), in
accordance with standard Company payroll policy for a period of six (6) months
following Termination Date.
(b) Any payments due under this Section 7 shall be in addition to and not
in lieu of any payments or benefits accrued for Executive through the
Termination Date under any other plan, policy or program of the Company.
(c) Notwithstanding anything to the contrary, whether by the terms
contained herein or in the Equity Plan or Incentive Stock Option Grant, upon
cessation of his employment with the Company for any reason, Executive shall
retain the incentive stock option granted to him pursuant to that certain
Incentive Stock Option Grant of even date herewith until the end of the option
term. In the event Executive's employment with the Company is terminated by the
Company for any reason or is terminated by the Executive for Good Reason, this
Option shall continue to vest and become exercisable in accordance with the
vesting schedule set forth in the Stock Option Grant for a period of nine (9)
months following the date of termination of employment.
8. Executive Works. Executive agrees that Executive will promptly disclose to
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the Company all Executive Works. Executive hereby irrevocably assigns to the
Company all right, title and interest in and to any and all Executive Works that
relate to the Business of the Company, including all worldwide copyrights, trade
secrets, patent rights, and all confidential, proprietary and property rights
therein, and Executive will execute, without
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requiring the Company to provide any further consideration therefor, such
confirmatory assignments, instruments and documents as the Company deems
necessary or desirable in order to effect such assignment.
9. Works Made for Hire. The Company and Executive acknowledge that in the
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course of Executive's employment by the Company, Executive may from time to time
create for the Company or its customers certain works of authorship. Such works
may consist of manuals, documentation, pamphlets, instructional materials,
videodisks, computer programs, user interfaces, tapes or other copyrightable
material, or portions thereof, and may be created within or without the
Company's facilities and before, during or after normal business hours. All such
works related to or useful in the business of the Company are specifically
intended to be works made for hire by Executive and owned by the Company or its
customers, as applicable, and Executive shall cooperate with the Company in the
protection of the Company or its customer's, as applicable, copyrights therein
and, to the extent deemed desirable by the Company or its customers, as
applicable, the registration of such copyrights.
10. Products, Notes, Records and Software. All memoranda, notes, records and
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other documents and computer software made or compiled by Executive or made
available to him during the Term of this Agreement concerning the Company,
including, without limitation, all customer data, billing information, service
data, and other technical material, confidential information and trade secrets
of the Company and its affiliates, shall be the Company's property and Executive
shall deliver all such materials (and all copies thereof) to the Company within
three (3) days after any termination of his employment with the Company.
11. Nondisclosure. Executive acknowledges and agrees that during the Term or
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any Renewal Term of this Agreement, he will have access to trade secrets and
other confidential or proprietary information peculiar to the Company, the
disclosure or use of which would injure the Company. Therefore, Executive agrees
that he will not at any time during or after the Term or any Renewal Term of his
employment by the Company reveal to any person or entity any of the trade
secrets or confidential information concerning the organization, business,
technology or finances of the Company or of any third party that the Company is
under and obligation to keep confidential (including but not limited to trade
secrets or confidential information respecting inventions, products, designs,
specifications, methods, know-how, techniques, systems processes, software
programs, works of authorship, customer lists projects, plans and proposals),
except as may be required in the ordinary course of performing his duties as an
employee of the Company. Executive shall keep secret all matters entrusted to
him and shall not use or attempt to use any such information in any manner which
could reasonably be expected to injure or cause loss or may be calculated to
injure or cause loss whether directly or indirectly to the Company.
12. Noncompetition. During the time Executive is employed by the Company and
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for a period of two (2) years after termination of his employment, Executive
will not singly,
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jointly, or as a partner, member, employee, agent, officer, director,
stockholder (except as a holder of not more than five percent (5%) of the
outstanding stock of any company listed on the a national securities exchange,
or actively traded in a national over the counter market), consultant,
independent contractor, or joint venturer of another Person, or in any other
capacity, directly or beneficially, own manage, operate, join control, or
participate in the ownership, management, operation or control of, or permit the
use of his name by, or work for, or provide consulting, financial or other
assistance to, or be connected in any manner with a Competing Business;
13. Nonsolicitation.
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(a) Customers. During Executive's employment with the Company,
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Executive shall not, directly or indirectly without the Company's prior written
consent, contact any customer of the Company with whom Executive had material
contact by reason of his employment with the Company ("Customer"), in the
Territory for business purposes unrelated to furthering the Business of the
Company. For a period of two (2) years following any termination of Executive's
employment with the Company, Executive shall not, directly or indirectly, in the
Territory, (i) contact, solicit, divert or take away, any Customer for purposes
of, or with respect to, selling a product or service which competes with the
Business of the Company, or (ii) take any affirmative action in regard to
establishing or continuing a relationship with a Customer for purposes of
making, or which directly or indirectly results in, a sale of a product or
service which competes with the Business of the Company.
(b) Employees. During the Term of Executive's employment with the
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Company and for a period of two (2) years following termination of Executive's
employment with the Company, Executive shall not, directly or indirectly,
recruit or hire, or attempt to recruit or hire, any other employees of the
Company who were employed by the Company during the Term of Executive's
employment with the Company and who are actively employed at the time of the
solicitation or attempted solicitation.
14. Remedy for Breach. Executive agrees that the Company's remedies at law
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of the Company for any actual or threatened breach by Executive of any of the
covenants contained in Paragraphs 8 through 13 of this Agreement would be
inadequate and that the Company shall be entitled to specific performance by
Executive of the covenants in such paragraphs or injunctive relief against
activities in violation of such paragraphs, or both, by temporary or permanent
injunction or other appropriate judicial remedy, writ or order, in addition to
any damages and legal expenses (including attorney's fees) which the Company may
be legally entitled to recover. Executive acknowledges and agrees that the
covenants contained in Paragraphs 8 through 13 of this Agreement shall be
construed as agreements independent of any other provision of this or any other
contract between the parties hereto, and that the existence of any claim or
cause of action by Executive against the Company, whether predicated upon this
or any other contract, shall not constitute a defense to the enforcement by the
Company of said covenants.
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15. Survival. The provisions of Paragraphs 8 through 14 shall survive
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termination of this Agreement.
16. Invalidity of Any Provision. It is the intention of the parties hereto
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that Sections 8 through 14 of this Agreement shall be enforced to the fullest
extent permissible under the laws and public policies of each state and
jurisdiction in which such enforcement is sought, but that the unenforceability
(or the modification to conform with such laws or public policies) of any
provision hereof shall not render unenforceable or impair the remainder of this
Agreement which shall be deemed amended to delete or modify, as necessary, the
invalid or unenforceable provisions. The parties further agree to alter the
balance of this Agreement in order to render the same valid and enforceable.
17. Applicable Law. This Agreement is being executed in the State of Florida
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and shall be construed and enforced in accordance with the internal laws of the
Florida without giving effect to the conflicts laws of such state.
18. Waiver of Breach. The waiver by the Company of a breach of any provision
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of this Agreement by Executive shall not operate or be construed as a waiver of
any subsequent breach by Executive.
19. Successors and Assigns.
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(a) This Agreement shall be binding upon and shall inure to the benefit of
the Company, its Successors and Assigns, and the Company shall require any
Successors and Assigns to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required to
perform it if no such succession or assignment had taken place.
(b) Neither this Agreement nor any right or interest hereunder shall be
assignable or transferable by the Executive, his beneficiaries or legal
representatives, except by will or by the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal personal representative under all circumstances.
20. Entire Agreement. This Agreement, together with any grants of stock option
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as provided in that certain Incentive Stock Option Grant of even date herewith,
under the Equity Plan contains the entire agreement of the parties. This
Agreement may not be changed orally but only by an agreement in writing signed
by the party against whom enforcement of any waiver, changes, modification,
extension, or discharge is sought.
21. Definitions.
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For purposes of this Agreement, the following terms shall have the
following meanings:
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(a) "Act" shall mean the Securities Act of 1933, as amended.
(b) "Accrued Compensation" shall mean an amount, including all amounts
earned or accrued through the Termination Date but not paid as of the
Termination Date including, (i) base salary of the Executive, (ii) reimbursement
for reasonable and necessary expenses incurred by the Executive on behalf of the
Company as of the Termination Date, and (iii) bonuses and incentive compensation
owed to the Executive.
(c) "Board" shall mean the Board of Directors of the Company.
(d) "Business of the Company" shall mean conducting research on banking and
credit products and providing such information to consumers in print and
electronic form and any other financial research business in which the Company
has engaged in substantial activities.
(e) The termination of the Executive's employment shall be for "Cause" if
it is a result of:
(i) any act that (A) constitutes, on the part of the Executive,
fraud, dishonesty, gross malfeasance of duty, or conduct grossly
inappropriate to the Executive's office, and (B) is demonstrably likely to
lead to material injury to the Company or resulted or was intended to
result in direct or indirect gain to or personal enrichment of the
Executive including the misappropriation of funds or any act of common law
fraud; or
(ii) habitual insobriety or substance abuse; or
(iii) the conviction (from which no appeal may be or is timely taken)
of the Executive of a felony or any crime involving moral turpitude; or
(iv) willful misconduct or gross negligence by Executive in the
performance of his duties, the willful failure of Executive to perform a
material function of Executives duties hereunder, or Executive's engaging
in a conflict of interest or other breach of fiduciary duty.
provided, however, that in the case of clause (i) above, such conduct shall
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not constitute Cause unless (A) there shall have been delivered to the
Executive a written notice setting forth with specificity the reasons that
the Board believes the Executive's conduct constitutes the criteria set
forth in clause (i), (B) the Executive shall have been provided the
opportunity to be heard in person by the Board (with the assistance of the
Executive's counsel if the Executive so desires), and (C) after such
hearing, the termination is evidenced by a resolution adopted in good faith
by two-thirds of the members of the Board (other than the Executive).
(f) A "Change in Control" shall mean the occurrence during the Term of any
of the following events:
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(i) An acquisition (other than directly from the Company) of any
voting securities of the Company (the "Voting Securities") by any "Person"
(as the term person is used for purposes of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934 (the "1934 Act")) immediately after which
such Person has "Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the 0000 Xxx) of 20% or more of the combined voting power
of the Company's then outstanding Voting Securities; provided, however,
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that in determining whether a Change in Control has occurred, Voting
Securities which are acquired in a "Non-Control Acquisition" (as
hereinafter defined) or the acquisition of voting securities by a Person
who, immediately prior to such acquisition, had Beneficial Ownership of 20%
or more of the combined voting power of the Company's then outstanding
voting securities shall not constitute an acquisition which would cause a
Change in Control. A "Non-Control Acquisition" shall mean an acquisition by
(1) an employee benefit plan (or a trust forming a part thereof) maintained
by (x) the Company or (y) any corporation or other Person of which a
majority of its voting power or its equity securities or equity interest is
owned directly or indirectly by the Company (a "Subsidiary"), (2) the
Company or any Subsidiary, or (3) any Person in connection with a "Non-
Control Transaction" (as hereinafter defined).
(ii) The individuals who, as of the date of this Agreement, are
members of the Board (the "Incumbent Board") cease for any reason to
constitute at least two-thirds of the Board; provided, however, that if the
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election, or nomination for election by the Company's stockholders, of any
new director was approved by a vote of at least two-thirds of the Incumbent
Board, such new director shall, for purposes of this Agreement, be
considered a member of the Incumbent Board; provided, further, however,
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that no individual shall be considered a member of the Incumbent Board if
such individual initially assumed office as a result of either an actual or
threatened "Election Contest" (as described in Rule 14a-11 promulgated
under the 0000 Xxx) or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board (a "Proxy
Contest") including by reason of any agreement intended to avoid or settle
any Election Contest or Proxy Contest; or
(iii) Approval by stockholders of the Company of:
(A) A merger, consolidation or reorganization involving the
Company, unless
(1) the stockholders of the Company, immediately before
such merger, consolidation or reorganization, own, directly or
indirectly, immediately following such merger, consolidation or
reorganization, at least two-thirds of the combined voting power
of the outstanding voting securities of the corporation
resulting from such merger or consolidation or reorganization
(the "Surviving Corporation") in substantially the same
proportion as their ownership of the Voting
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Securities immediately before such merger, consolidation or
reorganization, and
(2) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing
for such merger, consolidation or reorganization constitute at
least two-thirds of the members of the board of directors of the
Surviving Corporation.(A transaction described in clauses (1)
and (2) shall herein be referred to as a "Non-Control
Transaction.")
(B) A complete liquidation or dissolution of the Company; or
(C) An agreement for the sale or other disposition of all or
substantially all of the assets of the Company to any Person
(other than a transfer to a Subsidiary).
(iv) Notwithstanding anything contained in this Agreement to the
contrary, if the Executive's employment is terminated prior to a Change in
Control and the Executive reasonably demonstrates that such termination (A)
was at the request of a third party who has indicated an intention or taken
steps reasonably calculated to effect a Change in Control and who
effectuates a Change in Control (a "Third Party") or (B) otherwise occurred
in connection with, or in anticipation of, a Change in Control which
actually occurs, then for all purposes of this Agreement, the date of a
Change in Control with respect to the Executive shall mean the date
immediately prior to the date of such termination of the Executive's
employment.
(g) "Competing Business" shall mean those businesses conducting research
on banking and credit products and providing such information to consumers in
print and electronic form and any other financial research business in which the
Company has engaged in substantial activities.
(h) "Disability" shall mean a physical or mental infirmity which impairs
the Executive's ability to substantially perform his duties with the Company for
a period of 180 consecutive days, as determined by an independent physician
selected with the approval of both the Company and the Executive.
(i) "Effective Date" shall mean March 10, 1999
(j) "Executive Works" shall mean any and all works of authorship,
inventions, discoveries, improvements, designs, techniques, and work product,
whether or not patentable, and in whatever form, which are created, made,
developed or reduced to practice, or caused to be created, made, developed or
reduced to practice by Executive during the period of time that Executive is
employed by the Company and that relate in
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any way to the current or future business of the Company or that result from any
work performed by Executive for the Company.
(k) "Good Reason" shall mean the occurrence after a Change in Control of
any of the events or conditions described in subsections (i) through (viii)
hereof:
(v) a material change in the Executive's status, title, position or
responsibilities (including reporting responsibilities) which, in the
Executive's reasonable judgment, represents an adverse change from his
status, title, position or responsibilities as in effect at any time within
ninety days preceding the date of a Change in Control or at any time
thereafter; the assignment to the Executive of substantial duties or
responsibilities which, in the Executive's reasonable judgment, are
materially inconsistent with his status, title, position or
responsibilities as in effect at any time within ninety days preceding the
date of a Change in Control or at any time thereafter; any removal of the
Executive from or failure to reappoint or reelect him to any of such
offices or positions, except in connection with the termination of his
employment for Disability, Cause, as a result of his death or by the
Executive other than for Good Reason, or any other change in condition or
circumstances that in the Executive's reasonable judgment makes it
materially more difficult for the Executive to carry out the duties and
responsibilities of his office than existed at any time within ninety days
preceding the date of Change in Control or at any time thereafter;
(vi) a reduction in the Executive's base salary or any failure to
pay the Executive any compensation or benefits to which he is entitled
within five days of the date due;
(vii) the Company's requiring the Executive to be based at any place
outside a 30-mile radius from the Executive offices occupied by the
Executive immediately prior to the Change in Control, except for reasonably
required travel on the Company's business which is not materially greater
than such travel requirements prior to the Change in Control;
(viii) the failure by the Company to (A) continue in effect (without
reduction in benefit level and/or reward opportunities) any material
compensation or Executive benefit plan in which Executive was participating
at any time within ninety days preceding the date of a Change in Control or
at any time thereafter, unless such plan is replaced with a plan that
provides substantially equivalent compensation or benefits to the Executive
or (B) provide the Executive with compensation and benefits, in the
aggregate, at least equal (in terms of benefit levels and/or reward
opportunities) to those provided for under each other Executive benefit
plan, program and practice in which the Executive was participating at any
time within ninety days preceding the date of a Change in Control or at any
time thereafter;
(ix) the insolvency or the filing (by any party, including the
Company) of a petition for bankruptcy of the Company, which petition is not
dismissed within sixty days;
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(x) any material breach by the Company of any provision of this
Agreement;
(xi) any purported termination of the Executive's employment for
Cause by the Company which does not comply with the terms of this
Agreement; or
(xii) the failure of the Company to obtain an agreement, satisfactory
to the Executive, from any Successors and Assigns to assume and agree to
perform this Agreement, as contemplated in Section 18 hereof.
Any event or condition described in clause (i) through (viii) above which
occurs prior to a Change in Control but which the Executive reasonably
demonstrates (A) was at the request of a Third Party, or (B) otherwise arose in
connection with, or in anticipation of, a Change in Control which actually
occurs, shall constitute Good Reason for purposes of this Agreement,
notwithstanding that it occurred prior to the Change in Control. The
Executive's right to terminate his employment for Good Reason shall not be
affected by his incapacity due to physical or mental illness.
(l) "Involuntary Termination" shall mean
(1) the termination of Xxxxxxxx'x actual employment relationship with
the Company by the Company for any reason other than Cause,
(2) the termination of Xxxxxxxx'x actual employment relationship with
the Company by Xxxxxxxx within thirty days following a material reduction in
total compensation, a material reduction in duties or authority, a change in
principal place of employment or a Change of Control, or
(3) Xxxxxxxx'x death or permanent and total disability (as defined in
the Company's benefit plans in effect at the time).
(m) "Notice of Termination" shall mean a written notice of termination from
the Company or the Executive which specifies an effective date of termination,
indicates the specific termination provision in this Agreement relied upon, and
sets forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated.
(n) "Successors and Assigns" shall mean a corporation or other entity
acquiring all or substantially all the assets and business of the Company
(including this Agreement), whether by operation of law or otherwise.
(o) "Termination Date" shall mean, in the case of the Executive's death,
his date of death, and in all other cases, the date specified in the Notice of
Termination.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
EXECUTIVE: COMPANY:
XXXXXXX X. XXXXXXXX, III INTELLIGENT LIFE CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx, III ----------------------------
----------------------------- Name: Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxx, III Title: Senior Vice President
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