EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made and
entered into as of November 17, 1997, between XXXXXX GROUP, INC., Delaware
corporation (the "Company"), whose principal place of business is 0000 X.X. 000
Xxxxx, Xxxx 0, Xxxxx, Xxxxxxx 00000, and XXXXXX XXXX (the "Executive"), whose
address is 0000 X.X. 000 Xxxxx, Xxxx 0, Xxxxx, Xxxxxxx 00000.
RECITALS
A. The Company, through its wholly-owned subsidiaries UNITED INFORMATION
SYSTEMS, INC., a Florida corporation and UIS INDUSTRIAL, LTD., a company
organized under the laws of Brazil, is engaged in the business of assembling,
manufacturing, distributing and selling computers, computer parts, components
and accessories ("Business" or "Business Activities").
B. The Company has established a valuable reputation and goodwill in its
Business, with experience in all aspects of the Company and the Company's
Business.
C. The Executive has extensive experience in the Business.
D. The Executive has been employed by the Company's subsidiaries and wishes to
be employed by the Company and the Company wishes to hire the Executive, subject
to the terms and conditions of this Agreement.
E. The Executive, by virtue of the Executive's employment with the Company's
subsidiaries and now with the Company, is familiar with and possessed with the
manner, methods, trade secrets and other confidential information pertaining to
the Company's Business, including the Company's client base.
F. But for the execution of this Agreement by the Executive and specifically the
execution of the provisions concerning the Covenant Not to Compete and the
Non-Disclosure of Confidential Information, the Company would not enter into
this Agreement with the Executive.
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Company and the Executive do hereby agree as follows:
1. Recitals. The above recitals are true, correct, and are herein
incorporated by reference.
2. Employment. The Company hereby employs the Executive in the capacity
of a full-time President and Chief Executive Officer, and the Executive hereby
accepts such employment, upon the terms and conditions hereinafter set forth.
3. Duties During Employment Period. During the "Term" (including any
renewals thereof) as defined in Section 5 of this Agreement, the Executive
a. shall diligently devote the Executive's full time and
efforts to the business and affairs of the Company. The Executive shall have
such duties and powers that are commensurate and consistent with those of a
President and Chief Executive Officer, subject to the authority and direction of
the Company.
b. shall devote full attention and render exclusive, full time
services to the Company and shall be employed solely by the Company according to
the terms and conditions of this Agreement.
4. Compensation and Benefits.
a. Salary. The Executive shall be paid a base salary (the
"Base Salary"), payable monthly, at an annual rate of Three Hundred Thousand
Dollars ($300,000) for the first year.
b. Bonus. As additional compensation, subject to the
discretion of the Board of Directors, the Executive shall be entitled to receive
a bonus ("Bonus") based on performance of the Executive and consistent with
generally accepted industry standards.
c. Employee Benefits. The Executive shall be entitled to
participate in all benefit programs of the Company currently existing or
hereafter made available to executives and/or other salaried employees,
including, but not limited to, medical, pension and other retirement plans,
including any 401K Plan, group life insurance, dental, hospitalization, surgical
and major medical coverage, sick leave, salary continuation, vacation and
holidays, long-term disability, and other fringe benefits.
d. Dental and Medical Insurance. The Company shall provide
dental, hospitalization, surgical and major medical coverage for the Executive
and Executive's family.
e. Automobile Expenses. The COmpany shall provide the
Executive with an automobile allowance to be determined by the Board of
Directors. The Company shall also be responsible for all expenses in connection
with such automobile including, but not limited to, maintenance, insurance and
gas.
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f. Vacation. During each fiscal year of the Company, the
Executive shall be entitled to four (4) weeks of vacation time to be utilized or
paid for each year, or accrue and carry over into the following year; provided
however, that the Executive shall evidence reasonable judgment with regard to
appropriate vacation scheduling.
g. Business Expense Reimbursement. The Executive shall be
entitled to receive proper reimbursement for all reasonable, out-of-pocket
expenses incurred directly by the Executive (in accordance with the policies and
procedures established by the Company for its senior executive officers), in
performing services hereunder, provided the Executive properly accounts
therefor.
5. Term. The Term of employment hereunder will commence on the date
hereof and end three (3) years from the Effective Date ("Term"), unless
terminated pursuant to Section 6 of this Agreement, provided that the Executive
may renew this Agreement for an additional three (3) year term ("Renewal Term").
The Executive may renew this Agreement by providing the Company with notice
thereof prior to the thirty (30) day period immediately preceding the end of the
Term or Renewal Term, as the case may be.
6. Consequences of Termination of Employment.
a. Death. In the event of the death of the Executive during
the Term or Renewal Term of the Agreement, the Company shall also be obligated
to pay to the Executive's estate or heirs, as the case may be, any accrued
salary and the amount of accrued Bonus based upon (i) the formula set forth in
Section 4(b) of this Agreement for the fiscal year in which the death of the
Executive occurred; (ii) divided by twelve (12); and (iii) then multiplied the
number of completed months the Executive was employed by the Company just prior
to the Executive's death. Other death benefits will be determined in accordance
with the terms of the Company's benefit programs and plans.
b. Termination by the Company for Cause.
(1) Nothing herein shall prevent the Company from
terminating Employment for "Cause," as hereinafter defined. The
Executive shall continue to receive salary only for the period ending
with the date of such termination as provided in this Section 6(b). Any
rights and benefits the Executive may have in respect of any other
compensation shall be determined in accordance with the terms of such
other compensation arrangements or such plans or programs.
(2) "Cause" shall mean (A) committing or
participating in an injurious act of fraud, gross neglect,
misrepresentation, embezzlement or dishonesty against the Company; (B)
conviction of a felony resulting in the incarceration of Executive; (C)
any assignment of this Agreement by the Executive
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in violation of Section 19 of this Agreement; or (D) the death or
permanent disability of the Executive.
(3) Notwithstanding anything else contained in this
Agreement, this Agreement will not be deemed to have been terminated
for Cause unless and until there shall have been delivered to the
Executive a notice of termination stating that the Executive committed
one of the types of conduct set forth in this Section 6(b) contained in
this Agreement and specifying the particulars thereof and the Executive
shall be given a thirty (30) day period to cure such conduct set forth
in Section 6(c)(ii)(E)(II).
a. Termination by the Company Other than for Cause.
(1) The foregoing notwithstanding, the Company may
terminate the Executive's employment for whatever reason it deems
appropriate; provided, however, that in the event such termination is
not based on Cause, as provided in Section 6(b) above, or if
Executive's employment is terminated under Section 6(f) hereof, the
Company shall continue to be obligated to pay to Executive all Salary
and benefits through the end of the then current term.
(2) In the event that the Executive's employment with
the Company is terminated pursuant to this Section 6(c), Section 6(e)
or Section 6(f), then Section 6(a) of this Agreement and all references
thereto shall be inapplicable as to the Executive and the Company.
b. Voluntary Termination. In the event the Executive
terminates the Executive's employment on the Executive's own volition (except as
provided in Section 6(e) and/or Section 6(f)) prior to the expiration of the
Term or Renewal Term of this Agreement, including any renewals thereof, such
termination shall constitute a voluntary termination and in such event the
Executive shall be limited to the same rights and benefits as provided in
connection with Section 6(a).
c. Constructive Termination of Employment. A termination by
the Company without Cause under Section 6(c) shall be deemed to have occurred
upon the occurrence of one or more of the following events without the express
written consent of the Executive:
(1) a significant change in the nature or scope of
the authorities, powers, functions, duties or responsibilities attached
to Executive's position as described in Section 3; or
(2) a change in Executive's principal office to a
location outside the Palm Beach-Broward-Dade County, Florida area; or
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(3) a material breach of the Agreement by the
Company; or
(4) a material reduction of the Executive's benefits
under any employee benefit plan, program or arrangement (for Executive
individually or as part of a group) of the Company as then in effect or
as in effect on the effective date of the Agreement, which reduction
shall not be effectuated for similarly situated employees of the
Company; or
(5) failure by a successor company to assume the
obligations under the Agreement.
Anything herein to the contrary notwithstanding, the Executive shall give
written notice to the Board of Directors of the Company that the Executive
believes an event has occurred which would result in a Constructive Termination
of the Executive's employment under this Section 6(e), which written notice
shall specify the particular act or acts, on the basis of which the Executive
intends to so terminate the Executive's employment, and the Company shall then
be given the opportunity, within fifteen (15) days of its receipt of such notice
to cure said event; provided, however, there shall be no period permitted to
cure a second occurrence of the same event and in no event will there be a
required period to cure following the occurrence of two events as described in
this Section 6(e).
d. Termination Following a Change of Control.
(1) In the event that a "Change in Control," as
hereinafter defined, of the Company shall occur at any time during the
Term or Renewal Term hereof, the Executive shall have the right to
terminate the Executive's employment under this Agreement upon thirty
(30) days written notice given at any time within one year after the
occurrence of such event, and such termination of the Executive's
employment with the Company pursuant to this Section 6(f)(1), then, in
any such event, such termination shall be deemed to be a Termination by
the Company Other than for Cause and the Executive shall be entitled to
such Compensation and Benefits as set forth in Subsection 6(c) of this
Agreement.
(2) For purposes of this Agreement, a "Change in
Control" of the Company shall mean a change in control (A) as set forth
in Section 280G of the Internal Revenue Code or (B) of a nature that
would be required to be reported in response to Item 1 of the current
report on Form 8K, as in effect on the date hereof, pursuant to Section
13 or 15(d) of the Securities Exchange Act of 0000 (xxx "Xxxxxxxx
Xxx"); provided that, without limitation, such a change in control
shall be deemed to have occurred at such time as:
(A) any "person", other than the Executive,
(as such term is used in Section 13(d) and 14(d) of the
Exchange Act) is or becomes the
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"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the
Company representing fifty percent (50%) or more of the
combined voting power of the Company's outstanding securities
then having the right to vote at elections of directors; or,
(B) the individuals who at the commencement
date of the Agreement constitute the Board of Directors cease
for any reason to constitute a majority thereof unless the
election, or nomination for election, of each new director was
approved by a vote of at least two thirds of the directors
then in office who were directors at the commencement of the
Agreement; or
(C) there is a failure to elect three or
more (or such number of directors as would constitute a
majority of the Board of Directors) candidates nominated by
management of the Company to the Board of Directors; or
(D) the business of the Company for which
the Executive's services are principally performed is disposed
of by the Company pursuant to a partial or complete
liquidation of the Company, a sale of assets (including stock
of a subsidiary of the Company) or otherwise.
Anything herein to the contrary notwithstanding, this Section 6(f)(2) will not
apply where the Executive gives the Executive's explicit written waiver stating
that for the purposes of this Section a Change in Control shall not be deemed to
have occurred. The Executive's participation in any negotiations or other
matters in relation to a Change in Control shall in no way constitute such a
waiver which can only be given by an explicit written waiver as provided in the
preceding sentence.
An "Attempted Change in Control" shall be deemed to have
occurred if any substantial attempt, accompanied by significant work efforts and
expenditures of money, is made to accomplish a Change in Control, as described
in subparagraphs (A), (B), (C) or (D) above whether or not such attempt is made
with the approval of a majority of the then current members of the Board of
Directors.
(3) In the event that, within twelve (12) months of
any Change in Control of the Company or any Attempted Change
in Control of the Company, the Company terminates the
employment of the Executive under this Agreement, for any
reason other than for Cause as defined in Section 6(b), or the
Executive's employment is constructively terminated as defined
in Section 6(f)(4), then, in any such event, such termination
shall be deemed to be a Termination by the Company Other than
for Cause and the Executive
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shall be entitled to such compensation and benefits as set
forth in Subsection 6(d) of this Agreement.
(4) For purposes of this Section 6(f), the
Executive's employment shall be deemed constructively
terminated in the event one or more of the following events
occurs without the express written consent of the Executive:
(A) Significant change in the nature or
scope of the authorities, powers, functions, duties or
responsibilities attached to Executive's position as
described in Section 3; or
(B) A Five Percent (5%) reduction in the
Executive's salary below the salary in effect immediately
prior to such reduction or a reduction in the target bonus
participation under Section 5(d) as a percentage of salary;
or
(C) Material breach of the Agreement by the
Company; or
(D) Material reduction of the Executive's
benefits under any employee benefit plan, program or
arrangement (for Executive individually or as part of a group)
of the Company as then in effect or as in effect on the
effective date or the Agreement, which reduction shall not be
effectuated for similarly situated employees of the Company;
or
(E) Failure by a successor company to assume
the obligations under the Agreement; or
(F) Change in the Executive's principal
office to a location outside the Palm Beach-Broward-Dade
County, Florida area.
(5) Anything in this Section 6(f) to the contrary
notwithstanding, in no event will any action or non-action by the
Executive at any time prior to the first anniversary date of the
applicable Change in Control or Attempted Change in Control (including
any action or non-action prior to the effective date of this Agreement)
be deemed consent to any of the events described in this Section 6(f).
(6) Anything herein to the contrary notwithstanding,
in the event the circumstances giving rise to an Attempted Change in
Control are included in those circumstances giving rise to an actual
Change in Control the twelve (12) month period under this Section 6
will be deemed to have recommenced on the date the actual Change in
Control occurred.
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7. Covenant Not to Compete. Executive acknowledges and recognizes the
highly competitive nature of Company's Business and that the goodwill, continued
patronage, and specifically the names and addresses of the Company's Clients
which includes any persons, partnerships, corporations, professional
associations or other organizations for whom the Company has performed Business
Activities (the "Company Clients") constitute a substantial asset of the Company
having been acquired through considerable time, money and effort. Executive
further acknowledges and recognizes that during the course of the Executive's
employment, Executive will receive specialized training, specific knowledge of
Company's Business, access to trade secrets and Confidential Information, as
defined in Section 8, participate in business and hiring decisions, and that it
would be impossible for Executive to work for a competitor without using and
divulging this valuable confidential information. That Executive acknowledges
that Company is without an adequate remedy at law in the event this covenant is
violated. Executive further acknowledges that this covenant not to compete is an
independent covenant within this Agreement. This covenant shall survive this
Agreement and shall be treated as an independent covenant for the purposes of
enforcement; provided, however, that the provisions of this Section 7 shall not
apply if Executive's employment is terminated without cause as provided in
Section 6(b) above, or if Executive's employment is terminated under Sections
6(e) or 6(f) hereof. The Executive recognizes that the terms of this covenant
are reasonable and necessary for the protection of the Company's business
because the value of Executive's services will be enhanced by his association
with Company. Accordingly, Executive agrees to the following:
a. that for a period of twenty four (24) months after
termination of the Executive's employment under this Agreement or any renewal or
extension thereof (the "Restricted Period"), for whatever reason and anywhere
within 100 miles of any Point of Presence (POP) of the Company (the "Restricted
Area"), Executive will not, individually or in conjunction with others, directly
or indirectly, engage in any Business Activities other than on behalf of the
Company and as agreed by the Company and Executive, whether as an officer,
director, proprietor, employer, employee, partner, independent contractor,
investor (other than as a holder of less than 10% of the outstanding capital
stock of a publicly traded corporation), consultant, advisor, agent or
otherwise.
b. That during the Restricted Period and within the Restricted
Area, Executive will not, indirectly or directly, compete with the Company by
soliciting, inducing or influencing any of the Company's Clients which have a
business relationship with the Company at any time during the Restricted Period
to discontinue or reduce the extent of such relationship with the Company.
c. That during the Restricted Period and within the Restricted
Area, Executive will not (a) directly or indirectly recruit or solicit any
employee or agent of the Company to discontinue such employment or agency
relationship with the Company, or (b) employ or seek to employ, or cause or
permit any business which competes directly or
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indirectly with the Business of the Company (the "Competitive Business") to
employ or seek to employ for any Competitive Business any person who is then (or
was at any time within six (6) months prior to the date Executive or the
Competitive Business employs or seeks to employ such person) employed by the
Company.
d. That during the Restricted Period, Executive will not
interfere with, disrupt or attempt to disrupt any past, present or prospective
relationship, contractual or otherwise, between the Company and any Company's
Clients, Employees or Agents.
8. Non-Disclosure of Confidential Information.
a. Executive acknowledges that the Company's trade secrets,
private or secret processes, methods and ideas, as they exist from time to time,
customer lists and information concerning the Company's products, services,
business records and plans, inventions, product design information, price
structure and pricing, discounts, costs, computer programs and listings, source
code and/or subject code, copyright, trademark, proprietary information,
formulae, protocols, forms, procedures, training methods, development, technical
information, know-how, show-how, new product and service development,
advertising budgets, past, present and future marketing, activities and
procedures, method for operating the Company's Business, credit and financial
data concerning the Company and the Company's Clients and client lists, which
client lists shall not only mean one or more of the names and addresses of the
clients of the Company but it shall also encompass any and all information
whatsoever regarding them, including their needs, and marketing, advertising,
promotional and sales strategies, sales presentations, research information,
revenues, acquisitions, practices and plans and information which is embodied in
written or otherwise recorded form, and other information of a confidential
nature not known publicly or by other companies selling to the same markets and
specifically including information which is mental, not physical (collectively,
the "Confidential Information") are valuable, special and unique assets of the
Company, access to and knowledge of which have been provided to Executive by
virtue of Executive's association with the Company. In light of the highly
competitive nature of the industry in which the Company's business is conducted,
Executive agrees that all Confidential Information, heretofore or in the future
obtained by Executive as a result of Executive's association with the Company
shall be considered confidential.
b. The Executive agrees that the Executive shall (1) hold in
confidence and not disclose or make available to any third party any such
Confidential Information obtained directly or constructively from the Company,
unless so authorized in writing by the Company; (2) exercise all reasonable
efforts to prevent third parties from gaining access to the Confidential
Information; (3) not use, directly or indirectly, the Confidential Information
in any respect of its business, except as necessary to evaluate the information
in order to perform the Executive's duties and responsibilities to the Company;
(4) restrict the disclosure or availability of the Confidential Information to
those who have read and
9
understand this Agreement and who have a need to know the information in
order to achieve the purposes of this Agreement without the prior consent of the
Company; (5) not copy or modify any Confidential Information without prior
written consent of the Company; provided, however, that such copy or
modification of any Confidential Information does not include any modifications
or copying which would otherwise prevent the Executive from performing his/her
duties and responsibilities to the Company; (6) take such other protective
measures as may be reasonably necessary to preserve the confidentiality of the
Confidential Information; and (7) relinquish and require all of its employees to
relinquish all rights it may have in any matter, such as drawings, documents,
models, samples, photographs, patterns, templates, molds, tools or prototypes,
which may contain, embody or make use of the Confidential Information; promptly
deliver to the Company any such matter as the Company may direct at any time;
and not retain any copies or other reproductions thereof.
c. Executive further agrees (1) that Executive shall promptly
disclose in writing to the Company all ideas, inventions, improvements and
discoveries which may be conceived, made or acquired by Executive as the direct
or indirect result of the disclosure by the Company of the Confidential
Information to Executive; (2) that all such ideas, inventions, improvements and
discoveries conceived, made or acquired by Executive alone or with the
assistance of others, relating to the Confidential Information, shall be the
property of the Company and shall be treated as Confidential Information in
accordance with the provisions hereof and that Executive shall not acquire any
intellectual property rights under this Agreement except the limited right to
use set forth in this Agreement; (3) that Executive shall assist in the
preparation and execution of all applications, assignments and other documents
which the Company may deem necessary to obtain patents, copyrights and the like
in the United States and in jurisdictions foreign thereto, and to otherwise
protect the Company.
d. Excluded from the Confidential Information, and therefore
not subject to the provisions of this Agreement, shall be any information which
the Executive can show (1) at the time of disclosure, is in the public domain as
evidenced by printed publications; (2) after the disclosure, enters the public
domain by way of printed publication through no fault of the Executive; (3) by
written documentation was in its possession at the time of disclosure and which
was not acquired directly or indirectly from the Company; or (4) by written
documentation was acquired, after disclosure, from a third party who did not
receive it from the Company, and who had the right to disclose the information
without any obligation to hold such information confidential. The foregoing
exceptions shall apply only from and after the date that the information becomes
generally available to the public or is disclosed to the Executive by a third
party, respectively. Specific information shall not be deemed to be within the
foregoing exceptions merely because it is embraced by more general information
in the public domain. Additionally, any combination of features shall not be
deemed to be within the foregoing exceptions merely because individual features
are in the public domain. If the Executive intends to avail himself/herself of
any of the
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foregoing exceptions, the Executive shall notify the Company in writing of
his/her intention to do so and the basis for claiming the exception.
e. Upon written request of the Company, Executive shall return
to the Company all written materials containing the Confidential Information.
Executive shall also deliver to the Company written statements signed by
Executive certifying all materials have been returned within five (5) days of
receipt of the request.
9. Covenants as Essential Elements of this Agreement: Survival of
Covenants. It is understood by and between the parties hereto that the foregoing
covenants by Executive contained in Sections 7 and 8 of this Agreement shall be
construed to be agreements independent of any other element of Executive's
relationship with the Company. The existence of any other claim or cause of
action, whether predicated on any other provision in this Agreement, or
otherwise, as a result of the relationship between the parties, shall not
constitute a defense to the enforcement of the covenants in this Agreement
against Executive.
10. Remedies and Enforcement.
a. Executive acknowledges and agrees that the Company's remedy
at law for a breach or threatened breach of any of the provisions of Sections 7
or 8 herein would be inadequate and the breach shall be per se deemed as causing
irreparable harm to the Company. In recognition of this fact, in the event of a
breach by Executive of any of the provisions of Sections 7 or 8, Executive
agrees that, in addition to any remedy at law available to the Company,
including, but not limited to monetary damages, the Company, without posting any
bond, shall be entitled to obtain equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction or
any other equitable remedy which may then be available to the Company.
b. If Executive violates the restrictions set forth in this
Agreement, then the duration of the restrictions under Sections 7 or 8 shall be
extended for an amount of time equal to the number of days that Executive
violated the Agreement until the date that the Company obtains an order
enjoining the Executive from said violation.
c. In the event that, despite the express agreement of
Executive and Company, any provision stated herein shall be determined by any
court or other tribunal of competent jurisdiction to be unenforceable for any
reason whatsoever, the parties agree that the provision shall be interpreted to
extend only over the maximum period of time for which it may be enforceable;
and/or over the maximum geographical area as to which it may be enforceable,
and/or to the maximum extent in any and all other respects as to which it may be
enforceable, all as determined by such court or tribunal.
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d. In the event that Executive challenges this Agreement and
an injunction is issued staying the implementation of the restrictions imposed
herein, the time remaining on the restrictions shall be tolled until the
challenge is resolved by final adjudication, settlement or otherwise, except
that the time remaining on the restrictions shall not be tolled during any
period in which Executive is unemployed. If a court finds in favor of Company,
the restrictions will be imposed for the amount of time that remains on the
restrictions at the time they were tolled, or at the time of the court's
decision of the restrictions were not tolled, as the case may be.
e. The provisions of Sections 7 and 8 of this Agreement, as
well as the period of time, geographical areas and types and scope of
restrictions of Executive's activities specified herein are intended to be
divisible; and, in the event any provision herein shall be deemed invalid or
unenforceable in any respect, as to any one or more periods of time,
geographical areas, business or activities, the remaining provisions shall not
thereby be affected but shall remain in full force and effect; and this
Agreement shall be deemed to be amended without further action by the parties
hereto to the extent necessary to render it valid and enforceable.
f. The Executive further acknowledges and agrees that in the
event of a breach, or threatened breach of the provisions of Sections 7 or 8,
the Company will suffer immediate and irreparable harm which said harm is
presumed to occur, and that Company shall be entitled to receive from a court of
competent jurisdiction, a temporary restraining order with or without notice to
Executive, as well as the entry of a preliminary and permanent injunction. Said
right to an injunction shall be in addition to and not in limitation of any
other rights or remedies Company may have for damages or otherwise.
g. It is further expressly understood and agreed that the
provisions of this Agreement shall apply whether this Agreement is terminated by
Company or Executive or upon its expiration or termination.
h. If the Executive breaches this provision and the Company
seeks an injunction or other legal remedy to interpret or enforce this covenant,
then the Executive agrees to pay all reasonable attorneys' fees and costs of the
Company both for the trial and any appeal.
i. Nothing herein contained shall be construed as prohibiting
the Company from pursuing any other remedies available to it for such breach or
threatened breach.
11. Litigation-Attorneys' Fees. In connection with any litigation
arising out of the enforcement of this Agreement or for its interpretation, the
prevailing party shall be entitled to recover its costs, including reasonable
attorneys' fees, at the trial and all appellate levels from the other party
hereto, who was the adverse party to such litigation.
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12. Freedom to Contract. The Executive represents and warrants that the
Executive has the right to negotiate and enter into this Agreement, and the
grant of the rights herein granted and that this Agreement does not breach,
interfere with or conflict with any other contractual agreement, covenant not to
compete, option, right of first refusal, or other existing business
relationship. Executive acknowledges that this representation is a material
inducement to Company entering into this Agreement and in the event Executive
breaches this warranty, Executive agrees to indemnify and hold harmless Company
from any and all claims, actions, losses, damages, including but not limited to,
reasonable attorneys' fees and costs.
13. Works for Hire. Executive acknowledges that, as between the Company
and Executive, the Confidential Information and any and all rights and
privileges provided under the trademark, copyright, trade secret and other laws
of the United States, the individual states thereof, and jurisdictions foreign
thereto, and the goodwill associated therewith, and specifically including any
modifications thereto, are and at all times will be the property of the Company.
To the extent that any of the Confidential Information or rights and privileges
described in the first sentence of this Section 13 and created by the Executive
during the term of the Executive's employment with the Company (any renewal
thereof) is determined not to be a work for hire, in consideration of the
payment of One Hundred Dollars ($ 100.00) and other valuable and legally
sufficient consideration, the receipt and sufficiency of which are hereby
acknowledged, Executive does hereby assign and transfer to Company any and all
rights and privileges provided under the copyright, trademark and other laws of
the United States, the individual states thereof and jurisdictions foreign
thereto with respect to the Work, together with any and all renewals thereof,
the goodwill associated therewith, and the right to bring suit for past
infringements thereof (hereinafter the "Rights"). The Executive does hereby also
agree, without further consideration, to execute any additional documents and
take such additional action as may be requested in order to vest in the Company
good, valid and marketable title to the Rights.
14. Effect on Prior Agreements. This Agreement supersedes any and all
prior or written agreements in their entirety between the parties, which shall
be void and of no further force and effect after the date of this Agreement.
15. Notices. Any notice required or permitted to be given under the
terms of this Agreement shall be sufficient if in writing and if sent postage
prepaid by registered or certified mail, return receipt requested, by overnight
delivery, by courier; or by confirmed telecopy, in the case of the Executive to
the Executive's last place of business or residence as shown on the records of
the Company, or in the case of the Company to its principal office as set forth
in the introductory paragraph, or such other place as it may designate.
16. Waiver. Unless agreed in writing, the failure of either party, at
any time, to require performance by the other of any provisions hereunder shall
not affect its right thereafter to enforce the same, nor shall a waiver by
either party of any breach of any
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provision hereof be taken or held to be a waiver of any other preceding or
succeeding breach of any term or provision of this Agreement. No extension of
time for the performance of any obligation or act shall be deemed to be an
extension of time for the performance of any other obligation or act hereunder.
17. Complete Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the contents hereof and supersedes
all prior agreements and understandings between the parties with respect to such
matters, whether written or oral. Neither this Agreement nor any term or
provision hereof of may be changed, waived, discharged or amended in any manner
other than by an instrument in writing, signed by the party against which the
enforcement of the change, waiver, discharge or amendment is sought.
18. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one agreement.
19. Binding Effect/Assignment. This Agreement shall be binding upon the
parties hereto, their heirs, legal representatives, successors and assigns. This
Agreement shall not be assignable by the Executive but shall be assignable by
the Company in connection with the sale, transfer or other disposition of its
business or to any of the Company's affiliates controlled by or under common
control with the Company.
20. Governing Law, Venue, Waiver of Jury Trial. This Agreement shall
become valid when executed and accepted by Company at its offices in Dade
County, Florida. The parties agree that it shall be deemed made and entered into
in the State of Florida and shall be governed and construed under and in
accordance with the laws of the State of Florida without giving effect to any
principles of conflicts of law. Company and Executive acknowledge and agree that
the U.S. District for the Southern District of Florida, as if such court lacks
jurisdiction, the 17th Judicial Circuit (or its successor) in and for Dade
County, Florida, shall be the exclusive venue and proper forum in which to
adjudicate any case or controversy arising either, directly or indirectly, under
or in connection with this Agreement and the parties further agree that, in the
event of litigation arising out of or in connection with this Agreement in these
courts, they will not contest or challenge the jurisdiction or venue of these
courts. The parties further agree and hereby waive and release any right to a
trial by jury in any action arising out of the interpretation, enforcement or
breach of this Agreement. Executive further agrees that he must bring an action
arising out of this Agreement within six (6) months from the date of accrual of
cause of action or forever be barred from bringing said action.
21. Headings. The headings of the sections are for convenience only
and shall not control or affect the meaning or construction or limit the scope
or intent of any of the provisions of this Agreement.
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22. Survival. Any termination of this Agreement shall not affect the
ongoing provisions of this Agreement which shall survive such termination in
accordance with their terms.
23. Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein. If any court
determines that any provision of Sections 7 or 8 hereof is unenforceable because
of the duration or scope of such provision, such court shall have the power to
reduce the scope or duration of such provision, as the case may be, and, in its
reduced form, such provision shall then be enforceable.
24. Construction. This Agreement shall be construed within the fair
meaning of each of its terms and not against the party drafting the document.
THE PARTIES TO THIS AGREEMENT HAVE READ THIS AGREEMENT, UNDERSTAND ITS TERMS AND
CONDITIONS, HAVE HAD THE OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL OF
THEIR OWN CHOICE AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written in Dade County, Florida.
XXXXXX GROUP, INC.
By:
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EXECUTIVE:
/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
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