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Exhibit 10.5
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("this Agreement") is made and effective as
of this 1st day of January, 1999, by and between CENTRACK INTERNATIONAL, INC.,
a Florida corporation (the "Company" or "Employer"), and XXXX X. XXXXXXXX
(hereinafter "Employee").
WITNESSETH:
WHEREAS, Employee is the Company founder and has since inception been a
loyal and devoted employee;
WHEREAS, Company believes it is in Company's best interest to employ
Employee, and Employee desires to be employed by Company; and
WHEREAS, Company and Employee desire to set forth the terms and
conditions on which Employee shall be employed by and provide his services to
Company;
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto, intending to be legally bound, do hereby
agree as follows:
1. Employment. Company hereby employs Employee in its business as
President, Chairman of the Board of Directors of the Company ("Board") and
Chief Executive Officer, and Employee hereby accepts such employment, all upon
the terms and conditions hereinafter set forth.
2. Term. Unless sooner terminated pursuant to the provisions of this
Agreement, the term of employment under this Agreement shall be for five (5)
years ("Employment Period"). The Employment Period shall be automatically
extended for additional three year periods unless either party notifies the
other in writing that the Employment Period will not be renewed at least six
(6) months prior to the end of the initial term or six (6) months prior to the
end of any such three year renewal.
3. Salary and Base Compensation. Employee shall be entitled to receive
salary during the Employment Period at the rate of One Hundred Fifty Thousand
Dollars ($150,000) per annum, increased to One Hundred Seventy-Five Thousand
Dollars ($175,000) per annum effective January 1, 2000 increased to Two Hundred
Thousand Dollars ($200,000) per annum effective January 1, 2001, increased to
Two Hundred Fifty Thousand Dollars ($250,000) per annum effective January 1,
2002, increased to Three Hundred Fifty Thousand Dollars ($350,000)
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per annum effective Janury 1, 2003 (the "Base Salary"). In addition to the Base
Salary paid to Employee during the Employment Period, Employee shall be
entitled to receive the Benefits, Profits Bonus, Revenue Bonus and Stock
Options (as those terms are hereinafter defined) during the Employment Period.
The Base Salary shall be payable bi-weekly in accordance with the current
normal payroll policies of Company, which policies may be changed by Company
from time to time in its sole discretion, and shall be subject to all
appropriate withholding taxes.
4. Business Expenses and Reimbursements. Employee shall be entitled to
reimbursement by the Company for ordinary and necessary business expenses
incurred by Employee in the performance of his duties for Company, which types
of expenditures shall be determined and approved by the Company, and further
provided that:
(a) Each such expenditure is of a nature qualifying it as a
proper deduction on the Federal and State income tax returns of Company as a
business expense (determined without regard to statutory limitations) and not
as deductible compensation to Employee; and
(b) Employee furnishes Company with adequate records and other
documentary evidence required by federal and State statutes and regulations for
the substantiation of such expenditures as deductible business expenses of
Company and not as deductible compensation to Employee, as well as any other
documentation reasonably requested by Company.
(c) Employee agrees that, if at any time, any payment made to
Employee by Company, whether for salary or as a business expense reimbursement,
shall be disallowed in whole or in part as a deductible expense by the
appropriate taxing authorities, Employee shall reimburse Company to the full
extent of such disallowance.
5. Car Allowance. During the Employment Period, Employee shall be
reimbursed for all automobile expenses, with such automobile expenses limited
to $850.00 per month (increased by the Consumer Price Index increase on each
anniversary of this Agreement) in accordance with Company's normal automobile
allowance payment practices, as in existence from time to time, and the
Employee shall supply the Company with accurate invoices of all expenses under
this paragraph.
6. Benefits. Employee shall be entitled to receive during the entire
Employment Period the following benefits herein below described ("Benefits").
Employee agrees that the Base Salary, the Profits Bonus, the Revenue Bonus, the
Stock Option, and the Benefits and the other compensation provided in
accordance with this Agreement, are the sole and exclusive compensation of
Employee for his duties hereunder.
Continuing throughout the Employment Period:
Employee shall receive all of the employee benefits including,
without limitation,
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health insurance, pension, disability, profit sharing and
retirement benefits, provided at any time by Company to any of
its senior executive employees.
7. Vacation. Employee shall be entitled to paid vacation in accordance
with the vacation policy of the Company in effect for senior executives from
time to time, in no event to be less than three (3) weeks per calendar year.
8. Revenue and Profits Bonuses.
(a) During the Employment Period, Employee shall be paid, within thirty
(30) days after delivery of the Company's annual audited financial statements
for its fiscal year end, a bonus in cash equal to two percent (2%) of the
increase in total gross revenues of the Company including all subsidiaries on a
consolidated basis for the most recently ended fiscal year over the total gross
revenues for the Company as of the end of the immediately prior fiscal year.
For example, if total gross revenue for fiscal year "A" equals $2,100,000 and
if total gross revenue for fiscal year "B" equals $3,100,000, the bonus amount
payable hereunder would be two percent (2%) of said $1,000,000 difference, in
that case equal to $20,000 ("Revenue Bonus").
(b) Employee shall be paid, within thirty (30) days of the end of each
full calendar quarter during the Employment Period, a quarterly bonus equal to
five percent (5%) of the net pre-tax earnings of the Company including all
subsidiaries on a consolidated basis (the "Profits Bonus"). The term "net
pre-tax earnings" as used herein shall be determined by the Company's internal
financial statements and shall be subject at the Company's fiscal year end to
adjustment based upon the annual audit of the Company financial statements by
the Company's independent CPA firm in accordance with generally accepted
accounting principles and shall constitute income before interest, tax,
appreciation and amortization.
(c) Notwithstanding anything to the contrary in this Agreement, the
Profits Bonus shall be payable only provided Employee is in the employ of
Company on the last day of the respective quarter for which such Profits Bonus
is being calculated. Employee shall be entitled to the Revenue Bonus on a pro
rata basis for partial year calculations, based on full year results and
further payable in accordance with and subject to the normal payroll policies
of the Company with respect to similar forms of compensation, including without
limitation, being subject to all appropriate withholding taxes.
(d) If the fiscal year of the Company is changed, the annual Revenue
Bonus shall be adjusted for the year in which the election is made and the next
fiscal year so that the calculation will have been made on an equitable basis
for comparable periods.
9. Stock Option. Employee shall be eligible to receive stock options in
accordance
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with the stock option plans adopted by the Company from time to time or
determined by the Board of Directors of the Company, in all events annually
within thirty (30) days of the end of the Company's fiscal year in an amount
not less than twenty five percent (25%) of the aggregate of all stock options
granted to all other employees of the Company during the most recently ended
fiscal year.
10. Registration Rights. In the event Company registers common stock
held by other employees of Company, then the Company shall also register a pro
rata portion of the stock held by Employee.
11. Compensation Review. The Board shall from time to time, no less
frequently than annually, review Employee's compensation and may (in his sole
discretion) increase, but not decrease, the compensation provided for in
Section 3 hereof. Any such increase in compensation shall be valid only if in
writing, executed by a duly authorized officer of the Company, and such writing
shall constitute an amendment solely to the payments to be made to Employee
under this Agreement, without waiver or modification of any other provision
hereof.
12. Invention Assignment and Confidentiality Agreement. Against the
execution and delivery of this Agreement, Employee shall enter into an
agreement in the form of Exhibit "A" hereto (the "Invention Assignment and
Confidentiality Agreement").
13. Non-Competition Agreement. Against the execution and delivery of
this Agreement, Employee shall enter into a non-competition and
non-solicitation agreement (in the form of Exhibit "B" hereto) (the
"Non-Competition Agreement")
14. No Other Compensation or Benefits. Employee agrees that the
compensation set forth in this Agreement is the sole and exclusive compensation
of Employee for his duties hereunder, and that he shall have no rights to
receive any other compensation or benefits of any nature except for payments
for service as a director equal to those payments, if any paid by the Company
to its other members of its Board of Directors, which the Company shall be
obligated to pay to employee also, if any.
15. Duties. During the Employment Period:
(a) Employee shall furnish all manner of services in connection
with his position as Chairman of the Board, President and Chief Executive
Officer or as otherwise designated by the Board including, without limitation,
primary responsibility for management of the Company to carry out the policies
and programs of the Board and as from time to time may be delegated or assigned
to him by the Board;
(b) Employee shall report directly to the Board in the
performance of all his duties herein.
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(c) Employee shall comply with all Company policies for the
employees as such policies may exist from time to time.
(d) Employee shall devote his entire time, energy and skill to
the service of Company and the promotion of Company's interests, and shall use
his best efforts in the performance of his services hereunder. The parties
agree that Employee may not, during the Employment Period, be engaged in any
other business activity whether or not such activity is pursued for gain,
profit, or other pecuniary advantage including, without limitation, management
or management consulting activities; provided, however, Employee may invest his
personal assets in businesses where the form or manner of such investment will
not require services on the part of Employee conflicting with the duties of
Employee under this Agreement and in which his participation is solely that of
a passive investor. Employee agrees to abide by all rules and regulations
established from time to time by the Board; and all commissions, fees or other
income earned and received by Employee, if any, in furtherance of the business
of Company, or its affiliates or from any other business or financial
opportunity or endeavor in which Employee is an active participant and not a
passive investor, shall be accepted by Employee for the account of Company, and
shall be remitted to Company within three (3) days of Employee's receipt
thereof.
16. Authority to Contract. Employee shall have authority to enter into
contracts binding upon Employer and believed in good faith by Employee to be in
the best interest of the Company.
17. Termination.
(a) Employer shall have the right to terminate the Employment Period
only for substantial cause or if Employee becomes permanently disabled.
(b) As used in this Section 17, the term "substantial cause" shall
mean:
(i) the commission by Employee of any act of fraud, theft,
or embezzlement against Employer; or
(ii) Any material breach by Employee of this Agreement,
provided that Employer first shall have delivered to
Employee written notice of the alleged breach,
specifying the exact nature of the breach in detail,
and provided, further, that Employee shall have failed
to cure or substantially mitigate such breach within
thirty days after receiving notice thereof.
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(c) For purposes of this Section 17, the term "permanently disabled" or
"permanent disability" shall mean a physical or mental incapacity of Employee
which renders Employee unable to perform his duties hereunder and which shall
continue for nine (9)consecutive months or for twelve (12) months during any
period of eighteen (18) consecutive months.
(d) If Employer terminates the Employment Period for death or
substantial cause, the termination shall be effective immediately upon
Employee's receipt of written notice of termination from Employer, except in
the event of death. If Employer terminates the Employment Period by reason of
the permanent disability of Employee, the termination shall be effective ninety
days after the delivery by Employer of written notice of termination from
Employer.
18. Severance Pay. If Employer terminates the Employment Period for any
reason other than substantial cause, Employee shall be entitled to severance
pay from Employer in an amount equal to the greater of (a) three years' base
salary, at the rate in effect at the time of termination; or (b) the base
salary due to Employee for the remaining term of this Agreement, determined at
the rate of Employee's base salary at the date of termination. In addition,
Employee shall be entitled, if Employer terminates the Employment Period for
any reason other than substantial cause, all the Benefits, Profits Bonus,
Revenue Bonus and Stock Options (as those terms are herein defined) for the
remaining term of this Agreement. Employee shall be entitled, if Employer
terminates the Employment Period for any reason other than substantial cause,
all the Benefits (as described herein) for a period of five (5) years following
the termination of this Agreement.
19. Change in Control.
(a) For the purposes of this Agreement, a "change in control of
Employer" shall mean the occurrence of any of the following events:
(i) any "person" (as that term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as
amended ("Exchange Act")),who holds less than 20% of
the combined voting power of the securities of the
Employer, becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of Employer representing
twenty-five percent or more of the combined voting
power of the securities of Employer then outstanding;
or
(ii) during any period of twenty-four (24) consecutive
months, individuals who at the beginning of such
period constitute all members of the Board of
Directors of Employer shall cease, for any reason, to
constitute at least a majority of the Directors,
unless the election of each Director who was not a
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Director at the beginning of the period was approved
by a vote of at least two-thirds of the Directors then
still in office who were Directors at the beginning of
the period; or
(iii) Employer shall consolidate or merge with another
company and Employer is not the continuing or
surviving corporation, or shares of Employer's common
stock are converted into cash, securities, or other
property, other than a merger of Employer in which the
holders of the Employer's common stock immediately
prior to the merger have the same proportionate
ownership of common stock of the surviving corporation
immediately after the merger as they had in Employer
immediately prior to the merger; or
(iv) Employer shall sell, lease, exchange, or otherwise
transfer all or substantially all of its assets (in
one transaction or in a series of related
transactions); or
(v) the stockholders of Employer shall approve a plan or
proposal for the liquidation or dissolution of
Employer.
(b) Employee shall have the right to resign from the employ of Employer
at any time after a change in control of Employer. If Employee resigns within
two years of such a change in control, he shall be entitled to the payment
provided in subsection (c) of this Section 19.
(c) If Employee resigns from the employ of Employer within two years of
a change in control of Employer, of if Employer terminates this Agreement after
a change in control of Employer for any reason other than substantial cause,
then the following provisions of this Section 19 shall apply:
(i) in lieu of any further salary payments to Employee for
periods subsequent to the date of the termination of
his employment, Employer shall pay to Employee, in a
lump sum and in cash, as liquidated damages, an amount
equal to the sum of:
(A) the greater of (I) three years' base salary,
or (II) the base salary due to Employee for
the remaining term of this Agreement, in
either case at the greater of the rate in
effect at the date of the change in control
of Employer or at the date of termination;
plus
(B) an amount equal to a multiple of two (2)
times the largest total of Revenue and
Profits Bonuses previously paid in any one
year by Employer to Employee pursuant to the
provisions of Section IV(c) hereof.
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(ii) Employer shall maintain in full force and effect until
the expiration of the term of this Agreement, at its
expense, all group insurance and other employee
benefit plans (including, without limitation,
qualified profit- sharing and retirement type plans)
in which Employee was entitled to participate prior to
the date of his termination, provided that Employee's
continued participation is possible under the terms of
such plans. If Employee's continued participation
under such plans is not possible, Employer shall
arrange to provide Employee with alternative benefits
substantially similar to those provided under the
group insurance and employee benefit plans of Employer
in which Employee was participating prior to the date
of his termination.
Any payment due to Employee pursuant to the provisions of subsection
(c) of this Section 19 shall be paid to him by Employer on the fifth day
following the date of Employee's termination.
(d) For purposes of the remaining provisions of this Section 19, the
following terms shall have the following meanings:
(i) The term "Code" shall mean the Internal Revenue Code
of 1986, as amended; and any references to sections
thereof shall include any successor provisions of the
Code or of any future income tax laws enacted as
successors to the Code;
(ii) The term "Excise Tax" shall mean the tax imposed by
Section 4999 of the Code;
(iii) The term "Gross-Up Payment" shall mean the payment
referred to in subsection (e) of this Section 19.
(iv) The term "Section 19 Payments" shall mean all payments
to which Employee shall become entitled under the
provisions of this Section 19.
(v) The term "Other Payments" shall mean any payments or
benefits, other than the Section 19 Payments, received
or to be received by Employee in connection with a
change in control of Employer, or in connection with
Employee's termination of employment, and which are
payable pursuant to the terms of any plan,
arrangement, or agreement (other than this Agreement)
with Employer, with Employer's successors, with any
person
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whose actions result in a change in control of
Employer, or with any person affiliated either with
Employer or with any person whose actions result in a
change in control of Employer.
(e) If Employee becomes entitled to any payments under this Section 19,
and if the Section 19 Payments or any Other Payments will be subject to the
Excise Tax, then Employer shall pay to Employee an additional sum (the
"Gross-Up Payment") sufficient to provide Employee with a net amount equal to
the sum of the Section 19 and the Other Payments, after deduction of any Excise
Tax on such Payments and after deduction of any federal, state, or local income
taxes, and of any Excise Tax, upon the Gross-Up Payment. The amount due from
Employer under this Section 19(e) shall be paid to Employee within five days of
the date of Employee's termination.
(f) The following rules shall apply for the purpose of determining
whether any of the Section 19 Payments or any of the Other Payments will be
subject to the Excise Tax and for the purpose of computing the amount of any
such Excise Tax:
(i) All of the Other Payments shall be treated as
"parachute payments," within the meaning of Section
280G(b)(2) of the Code, and all "excess parachute
payments" within the meaning of Section 280G(b)(1) of
the Code shall be treated as being subject to the
Excise Tax; and
(ii) The value of any benefits payable to Employee in any
form other than cash, and the value of any deferred
payments or benefits due to Employee from Employer,
shall be determined by Employer's independent auditors
in accordance with the provisions of Section
280G(d)(3) of the Code.
(g) For purpose of determining the amount of the Gross-Up Payment:
(i) Employee shall be deemed to be subject to state and
local income taxes at the highest marginal rate of
taxation in the state and locality of Employee's
principal residence on the date of his termination;
and
(ii) Employee shall be deemed to be subject to federal
income taxes at the highest marginal rate of federal
income taxation in the calendar year in which the
Gross-Up Payment is due (net of the maximum reduction
in federal income taxes which Employee can obtain from
deduction of the state and local taxes described in
the preceding clause).
(h) If the Excise Tax is determined to exceed the amount taken into
account under the provisions of this Section 19 at the time of the termination
of Employee (including by reason of
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any payment, the existence or the amount of which could not be determined at
the time of the Gross-Up Payment), Employer shall make an additional Gross-Up
Payment in respect of such excess and in respect of any interest payable with
respect to such excess, at the time that the amount of such excess is finally
determined.
(i) Employee shall not be required to mitigate the amount
of any payment provided for in this Section 19 by
seeking other employment or otherwise; and the amount
of any payment provided for in this Section 19 shall
not be reduced by any compensation earned by Employee,
either as the result of employment by any other
employer after the date of his termination of
employment with Employer or otherwise.
20. Surrender of Records. Upon the termination of the Employee's
employment hereunder, for any reason whatsoever, and in addition to such other
actions as may be reasonably required by Employer, the Employee agrees to
surrender to the Employer, in good condition, any record or records kept by him
containing the names, addresses, and other information with regard to customers
or suppliers of the Employer.
21. Entire Agreement. This Agreement represents the entire
understanding and agreement between the parties with respect to the subject
matter hereof, and supersedes all other negotiations, understandings and
representations (if any) made by and between such parties.
22. Amendments. The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a writing signed by the
party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference to this Agreement.
23. Assignments. Employee shall not assign his rights and/or
obligations hereunder.
24. Binding Effect. All of the terms and provisions of this Agreement,
whether so expressed or not, shall be binding upon, inure to the benefit of,
and be enforceable by the parties and their respective administrators,
executors, legal representatives, heirs, successors and permitted assigns.
25. Severability. If any part of this Agreement or any other Agreement
entered into pursuant hereto is contrary to, prohibited by or deemed invalid
under applicable law or regulation, such provision shall be inapplicable and
deemed omitted to the extent so contrary, prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be given full force
and effect so far as possible.
26. Survival. Notwithstanding anything to the contrary herein, the
provisions of Sections 11 through 29 (inclusive) shall survive and remain in
effect in accordance with their respective terms in the event the employment is
terminated.
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27. Waivers. The failure or delay of Company at any time to require
performance by Employee of any provision of this Agreement, even if known,
shall not affect the right of Company to require performance of that provision
or to exercise any right, power or remedy hereunder, and any waiver by Company
of any breach of any provision of this Agreement should not be construed as a
waiver of any continuing or succeeding breach of such provision, a waiver of
the provision itself, or a waiver of any right, power or remedy under this
Agreement. No notice to or demand on Employee in any case shall, of itself,
entitle such party to any other or further notice or demand in similar or other
circumstances.
28. Specific Performance. Employee acknowledges that the services to be
rendered by Employee hereunder are extraordinary and unique and are vital to
the success of the Company, and that damages at law would be an inadequate
remedy for any breach or threatened breach of this Agreement by Employee.
Therefore, in the event of a breach or threatened breach by Employee of any
provision of this Agreement, then Company shall be entitled, in addition to all
other rights or remedies, to injunctions restraining such breach, without being
required to show any actual damage or to post any bond or other security.
29. Notices. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing (including telex
and telegraphic communication) and shall be (as elected by the person giving
such notice) hand delivered by messenger or courier service, telecommunicated,
or mailed (airmail if international) by registered or certified mail (postage
prepaid), return receipt requested, addressed to:
If to Employee:
Xx. Xxxx X. Xxxxxxxx
00000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
If to the Company: With a Copy to:
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Centrack International, Inc. Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx, P.A.
00000 Xxxxxxxxxx Xxxxx, Xxxxx 000 000 Xxxx Xxxxxxx Xxxx., Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx Xxxx Xxxxxxxxxx, Xxxxxxx 00000
ATTN: Xxxx X. Xxxxxxxx ATTN: Xxxxxxx X. Xxxxxxx
or to such other address as any party may designate by notice complying with
the terms of this Section. Each such notice shall be deemed delivered (a) on
the date delivered if by personal
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delivery, (b) on the date telecommunicated if by telegraph, (c) on the date of
transmission with confirmed answer back if by telex or telecommunicated, and
(d) on the date upon which the return receipt is signed or delivery is refused
or the notice is designated by the postal authorities as not deliverable, as
the case may be, if mailed.
30. Jurisdiction and Venue. The parties acknowledge that a substantial
portion of negotiations, anticipated performance and execution of this
Agreement occurred or shall occur in Palm Beach County, Florida, and that,
therefore, without limiting the jurisdiction or venue of any other federal or
state courts, each of the parties irrevocably and unconditionally (a) agrees
that any suit, action or legal proceeding arising out of or relating to this
Agreement may be brought in the courts of record of the State of Florida in
Palm Beach County or the court of the United States, Southern District of
Florida; (b) consents to the jurisdiction of each such court in any such suit,
action or proceeding; (c) waives any objection which it may have to the laying
of venue of any such suit, action or proceeding in any of such courts; and (d)
agrees that service of any court paper may be effected on such party by mail,
as provided in this Agreement, or in such other manner as may be provided under
applicable laws or court rules in said state.
31. Remedies Cumulative. No remedy herein conferred upon any party is
intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise. No single or partial exercise by any party of any right, power or
remedy hereunder shall preclude any other or further exercise thereof.
32. Employee Representations, Warranties, and Acknowledgments.
Employee represents and warrants to Company that he is fully empowered to enter
and perform his obligations under this Agreement and, without limitation, that
he is under no restrictive covenants to any person or entity that will be
violated by his entering into and performing this Agreement, and that this
Agreement constitutes the valid and legally binding obligation of Employee
enforceable in accordance with its terms. The execution and delivery of this
Agreement by Employee has been duly authorized by all necessary action.
Employee shall indemnify Company upon demand for and against any and all
judgments, losses, claims, damages, costs (including without limitation all
legal fees and costs, even if incident to appeals) incurred or suffered by any
of them as a result of the breach of the representations and warranties made in
this section, or as a result of the failure of the acknowledgment made in this
section to be true and correct at all times.
33. Governing Law. This Agreement and all transactions contemplated by
this Agreement shall be governed by, and construed and enforced in accordance
with, the internal laws of the State of Florida without regard to principles of
conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Attest: CENTRACK INTERNATIONAL, INC.
/s/ Xxxx X. Xxxxxxxx
-----------------------------
By: Xxxx X. Xxxxxxxx
Title: C.E.O.
Witness: EMPLOYEE:
/s/ Xxxxxxx X. Xxxxx, III /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
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INVENTION ASSIGNMENT AND CONFIDENTIALITY AGREEMENT
THIS AGREEMENT is entered into as of this 1st day of January, 1999, by
and between CENTRACK INTERNATIONAL, INC., a Florida corporation (the "Company"
) and Xxxx X. Xxxxxxxx, (hereinafter referred to as "Employee") for and in
consideration of Employee's continued employment or engagement by the Company
and the compensation that Employee shall receive during Employee's employment
or engagement, the parties agree as follows:
1. Both during and after Employee's employment or engagement:
a. Employee shall not disclose to anyone outside the Company any
Confidential Information. "Confidential Information" is defined
as information which has not been made publicly available by
the Company or the third party owner of such information, and
1. Which was developed by the Company, and relates to the
Company's past, present, and future business,
including but not limited to developments (defined
below, technical data, specifications, designs,
concepts, discoveries, copyrights, improvements,
product plans, research and development, personal
information, personnel information, financial
information, customer lists, leads, and/or marketing
programs;
2. All documents marked as confidential and/or containing
such confidential information; and/or
3. All information the Company has acquired or received
from a third party in confidence.
b. Employee shall use Confidential Information only for the
Company's business purposes; and
c. Employee shall use any information received in confidence by
the Company from any third party only as permitted by written
agreement between the Company and the third party; and
d. Employee shall not be permitted to justify any disregard of the
obligations of Employee hereunder by using any of the
Confidential Information to guide a search by it of
publications and other publicly available information,
selecting a series of items of knowledge from unconnected
sources and fitting them together
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by use of the integrated disclosure of the information thereby
to justify its disregard of the obligations of confidence.
2. Employee shall not disclose to the Company, use in the Company's
business, or cause the Company to use any information or material which
is confidential to any third party unless the Company has a written
agreement with the third party allowing the Company to receive and use
the confidential information or materials. Employee will not incorporate
into Employee's work any material which is subject to the copyrights of
any third party unless the Company has the right to copy and incorporate
such copyrighted material.
3. When Employee is no longer employed or engaged by the Company, Employee
shall return to the Company all the Company property, and any and all
third party property, including all Confidential Information, drawings,
computer programs or copies thereof, documentation, notebooks and notes,
reports and any other materials on electronic or printed media.
4. Employee hereby grants, transfers and assigns and agrees to grant,
transfer and assign to the Company all of his rights, title and
interest, if any, in and to any and all Developments (as defined below),
including rights to translation and reproductions in all forms or
formats and the copyrights and patent rights thereto, if any, and he
agrees that the Company may copyright said materials in the Company's
name and secure renewal, reissues and extensions of such copyrights for
such periods of time as the law may permit. "Developments" is defined as
any idea, invention, process, design, concept, or useful article
(whether the design is ornamental or otherwise), computer program,
documentation, literary work, audiovisual work and any other work of
authorship, hereafter expressed, made or conceived solely or jointly by
consultant during Employee's employment or engagement, whether or not
subject to patent, copyright or other forms of protection that:
a. Are related to the actual or anticipated business,
research or Development of the Company; and/or
b. Are suggested by or result from any task assigned to
Employee or work performed by Employee for or on
behalf of the Company.
Employee acknowledges that the copyrights in Developments created by
Employee in the scope of Employee's employment or engagement, belong to
the Company by operation of law, or may belong to a party engaged by the
Company by operation of law pursuant to a works for hire contract
between the Company and such contracted part. To the extent the
copyrights in such works may not be owned by the Company or such
contracted party by
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operation of law, Employee hereby assigns to the Company or such
contracted party, as the case may be , all copyrights (if any) Employee
may have in Developments.
At all times hereafter, Employee agrees to assist the Company in
obtaining patents or copyrights on any Developments assigned to the
Company that the Company, in its sole discretion, seeks to patent or
copyright. Employee also agrees to sign all documents, and do all things
necessary to obtain such patents or copyrights, to further assign them
to the Company, and to reasonably protect them and the Company against
infringement by other parties at the Company expense with the Company
prior approval.
Employee irrevocably appoints any the Company-selected designee to act,
at all times hereafter, as his agent and attorney-in-fact to perform all
acts necessary to obtain patents and/or copyrights as required by this
Agreement if Employee (i) refuses to perform those acts or (ii) is
unavailable, within the meaning of the United States Patent and
Copyright laws. It is expressly intended by Employee that the foregoing
power of attorney is coupled with an interest.
Employee shall keep complete, accurate, and authentic information and
records on all Developments in the manner and form reasonably requested
by the Company. Such information and records, and all copies thereof,
shall be the property of the Company as to any Developments assigned the
Company. Employee agrees to promptly surrender such information and
records at the request of the Company as to any Developments.
5. In connection with any of the Developments assigned by Section 4,
Employee agrees:
a. To disclose them promptly to the Company, and
b. At the Company's request, to execute separate written
assignments to the Company and do all things reasonable
necessary to enable the Company to secure patents, register
copyrights or obtain any other form of protection for
Developments in the United States and in other countries. If
Employee fails or is unable to do so, Employee hereby
authorizes the Company to act under power of attorney for
Employee to do all things to secure such rights.
c. To provide the Company with notice of any inadvertent
disclosure of Confidential Information related to any
Development.
6. Without limitation of any other Agreement between Employee and the
Company, Employee shall not employ or engage or attempt to employ or
engage the services of any employee of the Company, either directly or
through the agency of a third party during the term of, or within six
(6) months after, the termination of Employee's employment or engagement
with the Company.
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7. The Company, its subsidiaries, licensees, successors or assigns, (direct
or indirect) are not required to designate Employee as author of any
Development when such Development is distributed publicly or otherwise.
Employee waives and releases, to the extent permitted by law, all
Employee's rights to such designation and any rights concerning future
modifications of such Developments.
8. Rights, assignments, and representations made or granted by Employee in
this Agreement, are assignable by the Company and are for the benefit of
the Company's successors, assigns, and parties contracted with the
Company.
9. Miscellaneous Provisions.
a. Amendments. The provisions of this Agreement may not be
amended, supplemented, waived or changed orally, but only by a
writing signed by the party as to whom enforcement of any such
amendment, supplement, waiver or modification is sought and
making specific reference to this Agreement.
b. Further Assurances. The parties hereby agree from time to time
to execute and deliver such further and other transfers,
assignments and documents and do all matters and things which
may be convenient or necessary to more effectively and
completely carry out the intentions of this Agreement.
c. Brokers. Each of the parties represents and warrants that such
party has dealt with no broker or finder in connection with any
of the transactions contemplated by this Agreement, and,
insofar as such party knows, no broker or other person is
entitled to any commission or finder's fee in connection with
any of these transactions. The parties each agree to indemnify
and hold harmless one another against any loss, liability,
damage, cost, claim or expense incurred by reason of any
brokerage commission or finder's fee alleged to be payable
because of any act, omission or statement of the indemnifying
party.
d. Binding Effect. All of the terms and provisions of this
Agreement, whether so expressed or not, shall be binding upon,
inure to the benefit of, and be enforceable by the parties and
their respective administrators, executors, legal
representatives, heirs, successors and permitted assigns.
e. Headings. The headings contained in this Agreement are for
convenience of reference only, are not to be considered a part
hereof and shall not limit or otherwise affect in any way the
meaning or interpretation of this Agreement.
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Centrack International, Inc. Proprietary and Confidential
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f. Severability. If any provision of this Agreement or any other
Agreement entered into pursuant hereto is contrary to,
prohibited by or deemed invalid under applicable law or
regulation, such provision shall be inapplicable and deemed
omitted to the extent so contrary, prohibited or invalid, but
the remainder hereof shall not be invalidated thereby and shall
be given full force and effect so far as possible. If any
provision of this Agreement may be construed in two or more
ways, one of which would render the provision invalid or
otherwise voidable or unenforceable and another of which would
render the provision valid and enforceable, such provision
shall have the meaning which renders it valid and enforceable.
g. Survival. All covenants, agreements, representations and
warranties made herein or otherwise made in writing by any
party pursuant hereto shall survive the execution and delivery
of this Agreement and the termination of employment or
engagement of Employee.
h. Waivers. The failure or delay of any party at any time to
require performance by another party of any provision of this
Agreement, even if known, shall not affect the right of such
party to require performance of that provision or to exercise
any right, power or remedy hereunder. Any waiver by any party
of any breach of any provision of this Agreement should not be
construed as a waiver of any continuing or succeeding breach of
such provision, a waiver of the provision itself, or a waiver
of any right, power or remedy under this Agreement. No notice
to or demand on any party in any case shall, of itself, entitle
such party to any other or further notice or demand in similar
or other circumstances.
i. Specific Performance. Each of the parties acknowledges that the
parties will be irreparably damage (and damages at law would be
an inadequate remedy) if this Agreement is not specifically
enforced. Therefore, in the event of a breach or threatened
breach by any party of any provision of this Agreement, then
the other parties shall be entitled, in addition to all other
rights or remedies, to injunctions restraining such breach,
without being required to show any actual damage or to post any
bond or other security, and/or to a decree for specific
performance of the provisions of this Agreement.
j. Jurisdiction and Venue. The parties acknowledge that a
substantial portion of negotiations and anticipated performance
and execution of this Agreement occurred or shall occur in Palm
Beach County, Florida, and that, therefore, without limiting
the jurisdiction or venue of any other federal or state courts,
each of the parties irrevocably and unconditionally (a) agrees
that any suit, action or legal proceeding arising out of or
relating to this Agreement may be brought in the
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Centrack International, Inc. Proprietary and Confidential
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19
courts of record of the State of Florida in Palm Beach County
or the court of the United States, Southern District of
Florida; (b) consents to the jurisdiction of each such court in
any suit, action or proceeding; (c) waives any objection which
it may have to the laying of venue of any such suit, action or
proceeding in any of such courts; and (d) agrees that service
of any court paper may be effected on such party by mail, as
provided in this Agreement, or in such other manner as may be
provided under applicable laws or court rules in said state.
k. Remedies Cumulative. Except as otherwise expressly provided
herein, no remedy herein conferred upon any party is intended
to be exclusive of any other remedy, and each and every such
remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at
law or in equity or by statute or otherwise. No single or
partial exercise by any party of any right, power or remedy
hereunder shall preclude any other or further exercise thereof.
l. Governing Law. This Agreement and all transactions contemplated
by this Agreement shall be governed by, and construed and
enforced in accordance with, the internal laws of the State of
Florida without regard to principles of conflicts of laws.
m. Preparation of Agreement. This Agreement shall not be construed
more strongly against any party regardless of who is
responsible for its preparation. The parties acknowledge each
contributed and is equally responsible for its preparation.
n. Entire Agreement. This Agreement represents the entire
understanding and agreement among the parties with respect to
the subject matter hereof, and supersedes all other
negotiations, understandings and representations (if any) made
by and among such parties.
[REMAINDER OF PAGE LEFT BLANK]
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Centrack International, Inc. Proprietary and Confidential
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IN WITNESS WHEREOF, the parties have duly set their hands to this Agreement,
effective as of the day and year first written above.
Centrack International, Inc. Employee
/s/ Xxxx X. Xxxxxxxx /s/ Xxxx X. Xxxxxxxx
-------------------------------- --------------------------------
The Company Authorized Signature Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
--------------------------------
Employee's Printed Name
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21
NON-SOLICITATION AND NON-COMPETE AGREEMENT
THIS NON-SOLICITATION AND NON-COMPETE AGREEMENT ("Agreement") made as of
this 1st day of January, 1999 by and between CENTRACK INTERNATIONAL, INC., a
Florida corporation (hereinafter called "the Company) and Xxxx X. Xxxxxxxx, a
resident of Boca Raton, Florida (hereinafter "Employee").
WHEREAS, Employee is accepting employment with the Company; and
WHEREAS, the parties wish to reflect their agreement as to Employee's
promises regarding Employee's solicitation and competition which have induced
the Company to employ Employee at Employee's status with the Company, as well
as the Company's extension of certain severance benefits to Employee.
NOW, THEREFORE, Employee and the Company (hereinafter sometimes referred
to collectively as the "parties" and separately as a "party") in consideration
of Employee's employment with the Company and the covenants hereinafter set
forth and other good and valuable consideration and intending to be legally
bound hereby, agree as follows:
1. Non-solicitation. Employee will not, at any time while employed by
the Company and for one (1) year after the termination of Employee's employment
with the Company for any reason whatsoever, directly or indirectly (by
assisting or suggesting to another, or otherwise) solicit otherwise attempt to
induce or accept the initiative of another in such regard, alone or by
combining or conspiring with anyone, any employees, officers, directors,
agents, consultants, representatives, contractors, suppliers, distributors,
customers or other business contacts (collectively, "Business Affiliates") of
the Company to terminate or modify its position as an employee, officer,
director, agent, consultant, representative, contractor, supplier, distributor,
customer or business contact with the Company or to compete against the
Company.
2. Non-competition. (a) Employee shall not while employed by the
Company, and after the termination of said employment for any reason whatsoever
for one (1) year after such termination (the "No-Compete Period"), directly or
indirectly, as owner, officer, director, employee, agent, lender, broker,
investor, consultant or representative of any corporation or as owner of any
interest in, or as an employee, agent, consultant, partner, affiliate or in any
other capacity whatsoever or representative of any other form of business
association, sole proprietorship or partnership, conduct or be related to any
business in competition with any business of the Company now or in the future,
including without limitation, the sale of used construction equipment via the
Internet (herein referred to as the "Competitive Business") anywhere within the
United States, including without limitation, the solicitation of any
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Centrack International, Inc. Proprietary and Confidential
22
customers, who were at any time customers of the Company and in connection with
a business which is competitive with the Competitive Business.
(b) In addition to, and not in limitation of the other provisions hereof
or of any other Agreement between Employee and the Company, Employee shall not
at any time in any manner other than in the ordinary course of good faith
competition only as permitted herein interfere with, disturb, disrupt, decrease
or otherwise jeopardize the business of the Company or do or permit to be done
anything which may tend to take away or diminish the trade, business or good
will of the Company or give to any person the benefit or advantage of Company's
or Seller's methods of operation, advertising, publicity, training, business
customers or accounts, or any other information relating or useful to the
Company's business.
3. Legal Effect. The foregoing covenants of Employee shall be deemed
severable, and the invalidity of any covenant shall not affect the validity or
enforceability of any other covenant. The existence of any claim or cause of
action by Employee against the Company predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
these covenants. The Company's failure to object to any conduct in violation of
this Agreement shall not be deemed a waiver by the Company, but the Company
may, if it wishes, specifically waive any part or all of those covenants to the
extent that such waiver is set forth in writing duly authorized by the
Company's Board of Directors.
Employee acknowledges and confirms that the length of the term and
geographical restrictions contained herein are fair and reasonable and not the
result of overreaching, duress or coercion of any kind. Employee further
acknowledges and confirms that his full, uninhibited and faithful observance of
each of the covenants contained in this Agreement will not cause him any undue
hardship, financial or otherwise, and that enforcement of each of the covenants
contained in this Agreement will not impair his ability to obtain employment
commensurate with his abilities and on terms fully acceptable to him or
otherwise to obtain income required for the comfortable support of him and his
family and the satisfaction of the needs of his creditors. Employee
acknowledges and confirms that his special knowledge of the business of the
Company is such as would cause the Company serious injury and loss if he were
to use such ability and knowledge to the benefit of a competitor or were to
compete with the Company.
In the event that any court shall finally hold that the time or
territory or any other provision stated in this Agreement constitutes an
unreasonable restriction upon Employee, Employee hereby expressly agrees that
the provisions of this Agreement shall not be rendered void, but shall apply as
to time and territory or to such other extent as such court may judicially
determine or indicate constitutes a reasonable restriction under the
circumstances involved. Employee hereby agrees that in the event of the
violation by him of any of the provisions of this Agreement, The Company will
be entitled if it so elects, to institute and prosecute proceedings at law or
in equity to obtain damages with respect to such violation or to enforce the
specific
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Centrack International, Inc. Proprietary and Confidential
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performance of this Agreement by Employee or to enjoin Employee from engaging
in any activity in violation hereof without any requirement on the part of the
Company to post any bond.
In the event the Company should bring any legal action or other
proceeding for the enforcement of this Agreement, the time for calculating the
No-Compete Period or terms of any other restriction herein shall not include
the period of time commencing with the filing of legal action or other
proceeding to enforce the terms of this Agreement through the date of final
judgment or final resolution, including all appeals, if any, of such legal
action or other proceeding.
4. Miscellaneous Provisions.
The provisions of this Agreement may not be amended, supplemented,
waived or changed orally, but only by a writing signed by the party as to whom
enforcement of any such amendment, supplement, waiver or modification is sought
and making specific reference to this Agreement. All of the terms and
provisions of this Agreement, whether so expressed or not, shall be binding
upon, inure to the benefit of, and be enforceable by the parties and their
respective administrators, executors, legal representatives, heirs, successors
and permitted assigns. The headings contained in this Agreement are for
convenience of reference only, are not to be considered a part hereof and shall
not limit or otherwise affect in any way the meaning or interpretation of this
Agreement. The failure or delay of any party at any time to require performance
by another party of any provision of this Agreement, even if known, shall not
affect the right of such party to require performance of that provision or to
exercise any right, power or remedy hereunder. Any waiver by any party of any
breach of any provision of this Agreement should not be construed as a waiver
of any continuing or succeeding breach of such provision, a waiver of the
provision itself, or a waiver of any right, power or remedy under this
Agreement, No notice to or demand on any party in any case shall, of itself,
entitle such party to any other or further notice or demand in similar or other
circumstances.
The parties acknowledge that a substantial portion of negotiations,
anticipated performance and execution of this Agreement occurred or shall occur
in Palm Beach County, Florida, and that, therefore, without limiting the
jurisdiction or venue of any other federal or state courts, each of the parties
irrevocably and unconditionally (a) agrees that any suit, action or legal
proceeding arising out of or relating to this Agreement may be brought in the
courts of record of the State of Florida in Palm Beach County or the District
Court of the United States, Southern District of Florida; (b) consents to the
jurisdiction of each such court in any suit, action or proceeding; (c) waives
any objection which it may have to the laying of venue of any such suit, action
or proceeding in any of such courts; and (d) agrees that service of any court
paper may be effected on such party by mail, as provided in this Agreement, or
in such other manner as may be provided under applicable laws or court rules in
said state. Except as
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Centrack International, Inc. Proprietary and Confidential
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otherwise expressly provided herein, no remedy herein conferred upon any party
is intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise. No single or partial exercise by any party of any right, power or
remedy hereunder shall preclude any other or further exercise thereof. This
Agreement and all transactions contemplated by this Agreement shall be governed
by, and construed and enforced in accordance with, the internal laws of the
State of Florida without regard to principles of conflicts of laws. This
Agreement shall not be construed more strongly against any party regardless of
who is responsible for its preparation. The parties acknowledge each
contributed and is equally responsible for its preparation. Any time period
provided for herein which shall end on a Saturday, Sunday or legal holiday
shall extend to 5:00 p.m. of the next full business day. This Agreement
represents the entire understanding and agreement amount the parties with
respect to the subject matter hereof, and supersedes all other negotiations,
understandings and representations (if any) made by and among such parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
Centrack International, Inc. Employee
/s/ Xxxx X. Xxxxxxxx /s/ Xxxx X. Xxxxxxxx
-------------------------------- --------------------------------
The Company Authorized Signature Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
--------------------------------
Employee's Printed Name
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