Exhibit 4.6
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of the 7th day of October, 2002 (the
"Commencement Date") by and among Xxxxxxxxxxxx.xxx, Inc., a Florida Corporation
(hereinafter the "Company"), and Oswaldus Van Dam, an individual residing in Las
Vegas, NV ("Employee");
RECITAL
WHEREAS, the Company desires to retain the services of Employee and Employee is
willing to be employed by Company, on the terms and subject to the conditions
set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, the parties as follows:
SECTION 1. AS USED IN THIS AGREEMENT, THE FOLLOWING TERMS SHARE HAVE THE
MEANINGS SET FORTH BELOW:
"AFFILIATE" shall mean a corporation which, directly or indirectly, controls, is
controlled by or is under common control with the Company, or which is a
successor in interest to the Company, and for put-poses hereof, "control" shall
mean the ownership of 20% or more or the voting shares of the corporation in
question.
"BASIC SALARY" shall have the meaning assigned to it in Section 5 of this
Agreement.
"THE BUSINESS" shall mean the business conducted by the Company in the past and
on the date of execution of this Agreement, including business activities under
investigation or in developmental stages, all other business activities which
flow therefrom by a reasonable expansion of the present activities of the
Company, all business activities which may be developed by the Company during
the Term, and all business activities now conducted by the Company or any
Affiliate thereof or which may be developed by the Company or such Affiliates,
during the term of this Agreement, as reasonable expansions of their present
activities.
"COMMENCEMENT DATE" shall be the effective date of this Agreement, as stated on
page 1.
"CONFIDENTIAL INFORMATION" shall include, without limitation, trade "know-how,"
trade secrets, subscriber, advertiser and customer lists, pricing policies,
operational methods, methods of doing business, technical processes, formulae,
designs and design projects, inventions, research projects, and other business
affairs of the Company or its Subsidiaries and Affiliates, which (i) were, in
the case of the Company, or is ot- are designed to be used in or are or may be
useful in connection with the business of the Company or any Subsidiary or
Affiliate thereof or which, in the case of any of these entities, results from
any of the research or development activities of any such entity, which (ii) is
private or confidential in that it is not generally known or available to the
public, except as the result of unauthorized disclosure by or information
supplied by Employee or (iii) which gives the Company or any Subsidiary or
Affiliate of the Company an opportunity or the possibility of obtaining an
advantage over competitors who may not know or use such information or who are
not lawfully permitted to use the same.
"EMPLOYMENT YEAR" shall mean each twelve-month period, or part thereof, during
which Employee is employed hereunder, commencing on the Commencement Date or on
October 1 of any subsequent calendar - year, the first such subsequent
Employment Year being the twelve-month period which will begin on October 1,
2002.
"FISCAL QUARTER" shall mean each four-month period, or part thereof, during
which Employee is employed hereunder, commencing on the Commencement Date or on
October 1 of any subsequent calendar year, the first such subsequent Fiscal
Quarter being the four-month period which will begin on October 1, 2002.
"INCENTIVE BONUS" shall have the meaning assigned to it in Section 6.
"PERSON" shall mean any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation,
institution, public benefit corporation, entity or government (whether Federal,
state, county, city, municipal or otherwise, including, without limitation, any
instrumentality , division, agency, body or department thereof).
"RESTRICTED PERIOD" shall mean the term of employment of Employee under this
Agreement or any extension thereof and the twelve- month period thereafter, or
such shorter period as may be provided pursuant to any sections of this
Agreement- provided, however, that the Restricted Period shall terminate
immediately upon the Occurrence of any termination of the employment of Employee
by the Company other than pursuant to this Agreement or as authorized by law.
"SUBSIDIARY" shall mean a corporation, 50% or more of the outstanding voting
shares of which is owned or controlled directly or indirectly by the Company.
"TERM" shall mean the ten-n of employment of Employee under this Agreement.
"TERMINATION DATE" shall have the meaning assigned to it in Section 8.
"TERMINATION PAYMENT" shall have the meaning assigned to it in Section 8.
Wherever from the context it appears appropriate, each word or phrase stated in
either the singular or the plural shall include the singular and the plural, and
each pronoun stated in the masculine, feminine or neuter gender shall include
the masculine, feminine and neuter.
SECTION 2. EMPLOYMENT AND DUTIES OF EMPLOYEE.
2.1. EMPLOYMENT; TITLE; DUTIES. The Company hereby employs Employee, and
Employee hereby accepts appointment as employee of the Company. The principal
duty of Employee shall be to serve in such capacities. In such capacities,
Employee shall tender such services as are necessary and desirable to protect
and advance the best interests of the Company, acting, in all instances, under
the supervision of and in accordance with the policies set by the Board of
Directors.
2.2. PLACE OF EMPLOYMENT. The principal place of employment of Employee shall be
in Las Vegas, NV ,or such location as is consented to by Employee and the
Company. It is however distinctly understood and agreed that Employee may be
required, in connection with the performance of his duties, to work from time to
time at other locations designated by the Board or Directors or as required in
connection with the Business of the Company. When required to travel to and/or
spend time at such other locations, Employee's reasonable traveling and
temporary living expenses shall be reimbursed to him by the Company, upon his
submittal of detailed written vouchers, supported by appropriate documentation
and subject to the general reimbursement policies of the Company with respect to
executive officers.
2.3 PERFORMANCE OF DUTIES. Employee shall devote his full working time and
efforts to the performance of his duties as an executive of the Company and to
the performance of such other duties as are assigned him from time to time by
the Board of Directors of the Company. Employee shall not engage in or become
employed, directly or indirectly, in the commercial or professional business of
any other Person, without the prior written consent of the Board of Directors of
the Company, nor shall he act as a consultant to or provide any services to,
whether on a remunerative basis or otherwise, the commercial or professional
business of any other Person, without such written consent, which, in both
instances, may be given or withheld by the Board of Directors in its absolute
discretion. Attention to Employee's personal investments shall not be deemed to
violate this Subsection to the extent such attention does not constitute the
conduct of a separate business.
2.4 SERVICES TO THE COMPANY AND/OR ITS AFFILIATES. During the term of this
Agreement, it is understood that Employee may be requested from time to time to
provide assistance or consultative or other services to, or to act temporarily
as an Executive of an Affiliate or Subsidiary of the Company. Employee shall
perform such services and, if elected as all officer or director of any such
other company, shall hold such office (and discharge its duties) without
additional compensation other than the compensation set forth in this Agreement.
During the term of this Agreement, Employee shall also accept election or
appointment, and serve, during all or any part of the Term, as an officer and
director of any Subsidiary of the Company, and perform the duties appropriate
thereto, without additional compensation other than as set forth in this
Agreement.
SECTION 3. TERM OF EMPLOYMENT.
The employment of Employee pursuant to this Agreement shall commence as of the
Commencement Date and end on the earlier to occur of (i) October 1, 2012, or
(ii) the first date on which such employment is terminated in accordance with
Section 10 hereof (the "Termination Date").
SECTION 4. COMPENSATION AND BENEFITS.
The Company shall pay Employee as compensation for all of the services to be
rendered by him hereunder during the Term, and in consideration of the various
restrictions imposed upon Employee during the Term and the Restricted Period,
and otherwise under this Agreement, the Basic Salary and other benefits as
provided for and determined pursuant to Sections 5 to 10, inclusive, of this
Agreement.
SECTION 5. BASIC SALARY
The Company shall pay Employee, as compensation for all of the services to be
rendered hereunder by him during the Term, a salary of $6,000.00 per month (the
"Basic Salary"), payable in accordance with the regular payroll practices of the
Company for executives, less such deductions as are required to be deducted or
withheld by applicable laws or regulations and less such other deductions or
amounts, if any, as are authorized by Employee. Such Basic Salary may be
increased, but not decreased, from time to time in the sole discretion of the
Board of Directors. In addition Employee shall receive 0.65% ( sixtyfive
hundredths of 1 percent) of the current outstanding shares each quarter in S-8
stock upon the first day of such quarter.
SECTION 6. INCENTIVE BONUS.
6.1. OBLIGATION TO PAY INCENTIVE BONUS. Employee shall be eligible to receive as
additional compensation, 30 days after the day the Board of Directors approves
interim financial statements for the last-ended Fiscal Year, 1% of the issued
and outstanding shares of the Company if the gross revenues exceeds $10,000,000
for the year ending October 1, 2003, a 20% increase over the previous years
gross revenue in the year ending October 1, 2004 and a 10% increase for each
year after that. (the "Incentive Bonus").
6.3 No ASSIGNMENT. Employee shall have no right to assign or give any third
parties any rights in and to the Incentive Bonus, except that his rights
thereto, in the event of his death, shall be transferred to the personal
representatives of his estate.
SECTION 7. ADDITIONAL BENEFITS AND REIMBURSEMENT FOR EXPENSES.
7.1. ADDITIONAL BENEFITS. The Company shall provide the following additional
benefits to Employee during the Term:
(i) Participation on an equitable basis in medical, hospitalization or
accident/disability insurance plans and health programs; and
(ii) Four (4) weeks vacation with pay in each Employment Year comparable to that
afforded other executives of the Company and its subsidiaries. Provided however,
Employee shall not be entitled to take more than ten (10) consecutive business
days as vacation days without prior approval of the Company's Board of Directors
upon Employee's request made not less than three (3) weeks prior to the intended
vacation days, which approval shall not be unreasonably withheld. There will be
no carryover of unused vacation time or pay from year to year. Employee shall
also be entitled to all holiday privileges regularly observed by the Company
during the Term.
In addition, the Company, in its sole discretion, may include Employee in any
benefit plans which it now maintains or establishes in the future for
executives.
7.2. REIMBURSEMENT FOR EXPENSES. The Company shall pay or reimburse Employee for
all reasonable expenses actually incurred or paid by him during the performance
of his services under this Agreement, upon presentation of such bills, expense
statements, vouchers or such other supporting information as the Company may
reasonably require. The Board of Directors may from time to time require prior
approval for individual expense items in excess of pre-established aggregate
amounts for a fixed period or in excess of pre-established amounts for any type
of expenditure during any fixed period.
SECTION 8. TERMINATION OF EMPLOYMENT.
8.1. DEATH. If Employee dies during the Term, the Company shall pay his
designated beneficiary an amount equal to one year's compensation, in equal
payments over the next twelve months. If Employee dies during the Term, his
rights to receive his Incentive Bonus hereunder for any Fiscal Quarter which has
ended shall remain vested in his estate, but his fight to receive his Incentive
Bonus for the Fiscal Quarter in which he has died shall be prorated to the date
of his death. If Employee dies during the Term, neither Employee nor his estate
shall have any further fight to receive an Incentive Bonus except as stated
hereinabove.
8.2. DISABILITY.
8.2.1. If, during the Term, Employee becomes physically or mentally disabled,
whether totally or partially, so that he is unable to perform substantially all
his services hereunder for (i) a period of six (6) consecutive months, or (ii)
for shorter periods aggregating six (6) months during any twelve ( 12) month
period, the Company may, at any time after the last day of the sixth consecutive
month of disability, or after the day on which the shorter periods of disability
shall have equaled an aggregate of six (6) months, reduce compensation due
Employee from that day forward by twenty-five percent (25%). Employee's full
compensation shall be reinstated upon the Board of Directors' determination that
Employee has become able again to perform all his services hereunder. If, during
the Term, Employee's disability Continues Such that Employee is unable to
perform substantially all his services hereunder for (i) a period or nine (9)
consecutive months, or (ii) for shorter periods aggregating nine (9) months
during any twelve (12) month period, the Company may, at any time after the last
day of the ninth consecutive such month, or after the last day on which the
shorter periods of disability shall have equaled an aggregate of nine (9)
months, terminate Employee's employment by written notice to him. The date on
which Company sends written notice, of termination under this Subsection 8.2
shall be the Termination Date hereunder. In case of any dispute as to whether or
not Employee is disabled within the meaning of this Subsection 8.2, the
determination of disability is to be made by a licensed physician selected by
the Board of Directors of the Company and acceptable to Employee, in his
reasonable judgment, which physician's decision shall be final and binding on
the parties hereto. In the event Employee's employment is terminated pursuant to
this Subsection 8.2, the Company shall pay him an amount equal to all
compensation remaining unpaid at the time of the Termination Date plus any
compensation that would accrue to Employee through the end of the month of the
Termination Date. If Employee's employment is terminated under this Subsection
8.2, his right to receive his Incentive Bonus hereunder for any Fiscal Quarter
which has ended shall remain vested, but his right to receive his Incentive
Bonus for the Fiscal Quarter in which he is terminated shall be prorated to the
Termination Date, as provided in Subsection 6.2, and Employee shall have no
right to receive further Incentive Bonus payments thereafter.
8.3 TERMINATION FOR CAUSE. If Employee is convicted of or indicted for an
offense involving (i) fraud, (ii) embezzlement, or (iii) any other crime
involving moral turpitude, or if Employee commits (iv) gross or willful neglect
of duty, (v) a breach of any of the material provisions of this Employment
Agreement, on his part to be performed (including breach of the representations
and warranties of Section 9), (vi) such conduct as results or as is likely to
result in substantial damage to the reputation of the Company, or any of its
Subsidiaries or Affiliates, or (vii) if Employee declines to follow any
significant instruction adopted by the Board of Directors of the Company and
communicated to Employee, and if Employee adheres to persistent refusal or
neglect to follow such instructions or policy, the Company may at any time
thereafter terminate Employee's employment hereunder by written notice to him,
effective immediately and the date of the notice shall be the Termination Date
hereunder. Any Such termination shall be deemed to be termination for cause, for
purposes of this Agreement. It' Employee's employment is terminated for cause
hereunder, then Employee shall be entitled to receive only the following
payments: any portion of his Basic Salary accrued to the date of such
termination and not theretofore paid to him; and any Incentive Bonus to which he
is entitled for any completed Fiscal Quarter under this contract which has not
theretofore been paid to him; plus reimbursement for any expenses properly
incurred by Employee, and supported by appropriate vouchers, which expenses have
been incurred prior to the date of such termination and which have not
theretofore been reimbursed. Except as set forth in the immediately preceding
sentence, all of Employee's rights to compensation hereunder shall be
terminated, in the event of termination for cause, as of the Termination Date.
8.4 CONSTRUCTIVE TERMINATION OF EMPLOYEE. In the event the Company removes
Employee from the position of Executive Vice President, or if Employee is
removed as a Director of the Company without his consent (or fails to be
re-elected at any meeting of the Board of Directors of the Company held for the
purpose of electing or reelecting Directors of the Company) or substantially
changes his duties or his reporting responsibility to the Board of Directors
under Section 2.1, the employment of Employee, at his option, exercisable by
written notice given to the Company at any time within sixty (60) days following
such event (or failure to re-elect) (time of notice being deemed to be of the
essence), shall be deemed to have been constructively terminated by the Company
hereunder, as of the date of Employee's notice; provided, however, that such
constructive termination shall not be deemed a breach by the Company of its
obligations under this Agreement and further provided, however, that termination
for cause pursuant to Subsection 8.3 shall make the provisions of this
Subsection 8.4 inapplicable. The date of such written notice shall be deemed the
Termination Date hereunder.
If Employee's employment is terminated under this Subsection 8.4, and the
Termination Date is within four years of the Commencement Date, Employee shall
receive, within thirty (30) days of such written notice to the Company, a
Termination Payment, which shall be determined according to the following
schedule: (i) if the Termination Date hereunder is within one year of the
Commencement Date, the Termination Payment shall be one million five hundred
thousand dollars ($1,500,000); (ii) if the Termination Date is within two years
of the Commencement Date, the Termination Payment shall be one million three
hundred fifty thousand dollars ($1,350,000); (ii) if the Termination Date is
within three years of the Commencement Date, the Termination Payment shall be
one million two hundred thousand dollars ($1,200,000); (iv) if the Termination
Date is within four years of the Commencement Date, the Termination Payment
shall be one million fifty thousand dollars ($1,050,000), and so forth.
Additionally, Employee shall continue to receive the additional benefits
provided in Subsection 7.1 for a period of two (2) years from the Termination
Date.
If Employee's employment is terminated under this Subsection 8.4, and the
Termination Date is later than four years after the Commencement Date, Employee
shall receive an amount equal to his aggregate Base Salary for two (2) years
following the date of such Constructive Termination, or an amount equal to his
aggregate Base Salary through the end of the Term, whichever is the lesser
amount, and Employee shall continue to receive the additional benefits provided
in Subsection 7.1 during the period lie is entitled to receive Base Salary
pursuant to the provisions of this Subsection 8.4.
In the event or the Constructive Termination of Employee's Employment pursuant
to this Section 8.4, Employee's tight to receive an Incentive Bonus for each
Fiscal Quarter completed during the period of such continued Base Salary
payments shall remain in effect, and Employee's fight to receive an Incentive
Bonus on account of the year in which his employment terminated by virtue of
Constructive Termination shall be prorated to the date of such termination.
8.5. OTHER TERMINATION OF EMPLOYMENT BY THE COMPANY. In the event the Company
terminates the employment of Employee hereunder other than pursuant to any of
the prior provisions hereof, without Employee's consent, Employee shall be
deemed to have been constructively terminated by the Company, and such
termination shall be subject to the provisions of Subsection 8.4.
8.6. OTHER TERMINATION OF EMPLOYMENT BY EMPLOYEE. If Employee quits his
employment (other than as authorized under Subsection 8.4 hereof), he shall be
deemed to have been terminated by the Company for cause and shall be subject to
the provisions of Subsection 8.3 hereof
SECTION 9. REPRESENTATIONS AND WARRANTIES BY EMPLOYEE.
Employee hereby represents and warrants, the same being part of the essence of
this Agreement, that, as of the Commencement Date, he is not a party to any
agreement, contract or understanding, and no others facts or circumstances
exist, which would in any way restrict or prohibit him from undertaking or
performing any or his obligations under this Agreement. The foregoing
representation and warranty shall remain in effect throughout the Term.
SECTION 10. CONFIDENTIAL INFORMATION AND PROPRIETARY INTERESTS.
10.1. ACKNOWLEDGMENT OF CONFIDENTIALITY . Employee understands and acknowledges
that he may obtain Confidential Information in the performance of his services.
Employee further acknowledges that the services to be rendered by him are of a
special, unique and extraordinary character and that, in connection with such
services, lie will have access to Confidential Information vital to the
Company's, its Subsidiaries' and Affiliates' business and perhaps vital to the
business of the Company. Accordingly, Employee agrees that he shall not, either
during the Term or at any time thereafter, (i) use or disclose any such
Confidential Information outside the Company, and its Subsidiaries and
Affiliates; (ii) publish any works, speeches or articles with respect thereto;
or (iii), except as required in the proper performance of his services
hereunder, remove or aid in the removal 1'roi-n the premises of the Company, or
its Subsidiaries or Affiliates, of any Confidential Information or any property
or material relating thereto.
The foregoing confidentiality provisions shall cease to be applicable to any
Confidential Information which becomes generally available to the public (except
by reason of or in consequence of a breach by Employee of his obligations under
this Section 10).
In the event Employee is required by law or a court order to disclose any such
Confidential Information, he shall promptly notify the Company of such
requirement and provide the Company with a copy of any court order or of any law
which in his opinion requires such disclosure and, if the Company so elects,
permit the Company an adequate opportunity, at its own expense, to contest such
law or court order
10.2. DELIVERY of Material. Employee shall promptly, and without charge, deliver
to the Company on the termination of his employment hereunder, or at any other
time the Company may so request, all memoranda, notes, records, reports,
manuals, computer disks, videotapes, drawings, blueprints and other documents
(and all copies thereof relating to the business of the Company, and its
Subsidiaries and Affiliates, and all property associated therewith, which he may
then possess or have under his control.
10.3. CUSTOMER LISTS. Employee acknowledges that (i) all lists of suppliers,
advertisers, customers and vendors of the Company or of its Subsidiaries or
Affiliates developed during the course or Employee's employment and/or by the
Company are and shall be the sole and exclusive property of the Company, its
Subsidiaries or Affiliates, as the case i-nay be, and Employee further
acknowledges and agrees that lie neither has nor shall have any personal right,
title or interest therein; (ii) that such lists are and must continue to be
confidential-, and (iii) that such lists are not readily accessible to
competitors of the Company or its Subsidiaries or Affiliates.
10.4. IDEAS, PROGRAMS, ETC. If, during the Term, Employee invents or develops
any ideas, programs, formats, software systems or the likes, source codes,
proprietary codes or the like, relating to or useful in connection with the
Business of the Company, the same are and shall remain the property of the
Company, and lie will promptly deliver all copies of the same to the Company,
assign his interest therein to the Company and execute such documents as the
Company's counsel may request to convey title thereto to the Company including,
but not limited to patent applications, copyright applications, trademark
applications and the like. Employee shall not be entitled to any compensation,
other than as provided in this Agreement, for carrying out his obligations to
the Company under Subsection 10.4 or any other Subsection of this Section 10.
SECTION 11. NON-COMPETITION PROVISIONS.
Employee agrees that he will not, during the Restricted Period, compete directly
or indirectly with the business of the Company. The phrase "compete directly or
indirectly with the business of the Company" shall be deemed to include, without
limiting the generality thereof, (1) engaging or having a material interest,
directly or indirectly, as owner, employee, officer, director, partner, sales
representative, stockholder, capital investor, lessor, renderer of consultation
services or advise, either alone or in association with another or others, in
the operation of any aspect of any type of business or enterprise competitive
with the business or operation of the Company- (2) soliciting any of the
employees of the Company to leave the employ of the Company, or so soliciting
any employee of any Subsidiary or Affiliate of the Company; (3) soliciting any
of the employees of the Company to become employees of any other Person, or so
soliciting any employee of any Subsidiary or Affiliate of the Company, or (4)
soliciting any customer or supplier of the Company or any Affiliate or
Subsidiary of either of them, with respect to their business. Similarly,
Employee shall not raid, entice or induce any Person who on the Termination Date
is, or within one (1) year immediately preceding the Termination Date was, a
customer or supplier of the Company, or any of its Subsidiaries or Affiliates,
to become a customer of any other Person for products or services the same as,
or similar to, those products and services as from time to time shall be
provided by the Company, or any of its Subsidiaries and Affiliates, and Employee
shall not approach any Person for such purpose; nor shall Employee raid, entice
or induce any Person who on the Termination Date is, or within one year
immediately preceding the Termination Date was, an employee of the Coi-npany or
any of its Subsidiaries or Affiliates, to become employed by any other Person;
similarly, Employee shall not approach any such employee for such purpose or
authorize or knowingly approve the taking of such actions by any other Person or
assist any such other Person in taking any such action.
The phrase "compete directly or indirectly with the business of the Company"
shall not be deemed to include all ownership interest as an inactive investor,
which, for purposes of this Agreement, shall mean only the beneficial ownership
of less than five (5%) percent of the outstanding shares of any series or class
of securities of any competitor of the Company, which securities of such series
or class are publicly traded in the securities market.
SECTION 12. DISPUTES AND REMEDIES.
12.1. WAIVER OF JURY TRIAL. EMPLOYEE AND THE COMPANY HEREBY WAIVE THE RIGHT TO A
TRIAL BY JURY IN THE EVENT OF ANY DISPUTE WHICH ARISES UNDER THIS AGREEMENT.
12.2. INJUNCTIVE RELIEF. If Employee commits a breach, or threatens to commit a
breach, of any of the provisions of Section 2 or of Sections 10 or 11, the
Company shall have the following rights and remedies (each of which shall be
independent of the other, and shall be severally enforceable, and all of which
shall be in addition to, and not in lieu of, any other rights and remedies
available to the Company)
(i) the right and remedy to have the provisions of this Agreement specifically
enforced by any court having equity jurisdiction, it being acknowledged by
Employee that any such breach or threatened breach will or may cause irreparable
injury to the Company and that money damages will or may not provide an adequate
remedy to the Company- and
(ii) the right and remedy to require Employee to account for and pay over to the
Company all compensation, profits, monies, increments, things of value or other
benefits, derived or received by Employee as the result of any acts or
transactions constituting a breach of any of the provisions of Section 2 or of
Sections 10 or 11 of this Agreement, and Employee hereby agrees to account for
and pay over all such compensation, profits, monies, increments, things of value
or other benefits to the Company.
Employee specifically agrees not to object to any application made by the
Company to any court having equity jurisdiction, seeking an injunction
restraining him from committing, threatening or continuing any violation of
Section 2 or Sections 10 or 11 of this Agreement.
12.3. PARTIAL ENFORCEABILITY. If any provision contained in Section 2 or in
Section 10 or 11, or any part thereof is construed to be invalid or
unenforceable, the same shall not affect the remainder of Employee's agreements,
covenants and undertakings, or the other restrictions which he has accepted, in
Section 2 or in Sections 10 or 11, and the remaining such agreements, covenants,
undertakings and restrictions shall be given the fullest possible effect,
without regard to the invalid parts.
12.4 ADJUSTMENT OF RESTRICTIONS. Despite the prior provisions of this Section
12, if any covenant or agreement contained in Sections 2, 10 or 11, or any part
thereof, is held by any court of competent jurisdiction to be unenforceable
because of the duration of such provision or the geographic area covered
thereby, the court making such determination shall have the power to reduce the
duration or geographic area of such provision and, in its reduced form, such
provision shall be enforceable.
12.5. ATTORNEYS FEES AND EXPENSES. In the event that any action, suit or other
proceeding at law or in equity is brought to enforce the provisions of this
Agreement, or to obtain money damages for the breach thereof, and such action
results in the award of a judgment for money damages or in the granting of any
injunction in favor of the Company, then all reasonable expenses, including, but
not limited to, reasonable attorneys' fees and disbursements (including those
incurred on appeal) of the Company in such action, suit or other proceeding
shall (on demand of the Company) forthwith be paid by Employee. If such action
results in a judgment in favor of Employee, then all reasonable expenses,
including but not limited to, reasonable attorney's fees and disbursements
(including those incurred on appeal) of Employee in such action, suit or other
proceeding shall (on demand of Employee) forthwith be paid by the Company.
12.6. LIMITED ENFORCEABILITY. In the event that Employee elects to terminate
this Agreement pursuant to Subsection 8.4, or the Company terminates the
employment of Employee hereunder other than pursuant to any of the provisions of
this Agreement, Employee shall be released as of the Termination Date from any
and all further restrictions pursuant to Section 2 and Section 11.
SECTION 13. SURVIVAL
The provisions of Sections 10, 11, 12 and this Section 13 shall survive
termination of this Agreement and remain enforceable according to their terms.
SECTION 14. SEVERABILITY.
The invalidity or unenforceability of any provision or this Agreement shall in
no way affect the validity or enforceability of any other provisions hereof.
SECTION 15. NOTICES.
All notices, demands and requests required or permitted to be given under the
provisions of this Agreement shall be deemed duly given if made in writing and
delivered personally or mailed by postage prepaid certified or registered mail,
return receipt request, accompanied by a second copy sent by ordinary mail,
which notices shall be addressed as follows;
If to the Company:
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With a copy to:
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If to Employee:
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By notifying the other parties in writing, given as aforesaid, any party may
from time to time change its address or the name or any person to whose
attention notice is to be given, or may add another person, to whose attention
notice is to be given, in connection with notice to any party,
SECTION 16. ASSIGNMENT AND SUCCESSORS.
Neither this Agreement nor any of his fights or duties hereunder may be assigned
or delegated by Employee. This Agreement is not assignable by the Company except
to any successor in interest which takes over all or substantially all of the
business of the Company, as it is conducted at the time of such assignment. Any
corporation into or with which the Company is merged or consolidated or which
takes over all or substantially all of the business of Company shall be deemed
to be a successor of the Company for purposes hereof this Agreement shall be
binding upon and, except as aforesaid, shall inure to the benefit of the parties
and their respective successors and permitted assigns.
SECTION 17. ENTIRE AGREEMENT AND WAIVER.
17.1. INTEGRATION. This Agreement contains the entire agreement of the parties
hereto on its subject matter and supersedes all previous agreements between the
parties hereto, written or oral, express or implied, covering the subject matter
hereof No representations, inducements, promises or agreements, oral or
otherwise, not embodied herein, shall be of any force or effect. Provided,
however, that this Agreement shall not affect or operate to reduce any benefit
or compensation inuring to Employee of a kind elsewhere provided and not
expressly provided in this Agreement, including, without limitations any grant
of Incentive Stock Options to Employee.
17.2. NO WAIVER. No waiver or modification of any of the provisions of this
Agreement shall be valid unless in writing and signed by or on behalf of the
party granting such waiver or modification. No waiver by any party of any breach
or default hereunder shall be deemed a waiver of any repetition of such breach
or default or shall be deemed a waiver of any other breach or default, nor shall
it in any way affect any of the other terms or conditions of this Agreement or
the enforceability thereof. No failure of the Company to exercise any power
given it hereunder or to insist upon strict compliance by Employee with any
obligation hereunder, and no custom or practice at variance with the terms
hereof, shall constitute a waiver of the right of the Company to demand strict
compliance with the terms hereof
Employee shall not have the right to sign any waiver or modification of any
provisions of this Agreement on behalf of the Company, nor shall any action
taken by Employee, as the Vice President of Marketing of the Company, or
otherwise, reduce his obligations under this Agreement.
This Agreement may not be supplemented or rescinded except by instrument in
writing signed by all of the parties hereto after the Commencement Date. Neither
this Agreement nor any of the rights of any of the parties hereunder may be
terminated except as provided herein.
SECTION 18. GOVERNING LAW.
This Agreement shall be governed by and construed, and the rights and
obligations of the parties hereto enforced, in accordance with the laws of the
State of Florida.
SECTION 19. HEADINGS.
The Section and Subsection headings contained herein are for reference purposes
only and shall not in any way affect the meaningg or interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above, which shall be deemed to be the Commencement Date.
"The Company"
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By:
Its President and CEO
"Employee"
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