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Exhibit 10.20
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of the 1st day of July, 1999, by and between WORLD COMMERCE ONLINE, INC, a
Delaware corporation (the "Company"), and XXXXXXX X. XXXXXX (the "Executive").
R E C I T A L S:
WHEREAS, the Company is engaged in providing seamless and secure
networks on the world wide web to agribusiness organizations and industries to
enable them to do business-to-business and business-to-consumer transactions
worldwide (the "Business"), and has invested substantial time and money to
develop and build substantial relationships with specific prospective or
existing customers and other individuals and businesses with which it does
business; and
WHEREAS, the Board of Directors of the Company (the "Board") believes
that the attraction and retention of key employees such as the Executive is
essential to the growth and success of the Company; and
WHEREAS, the Board desires to employ the Executive as a Vice President
of the Company and as the Chief Operating Officer for North and South America of
World Commerce Online - Floraplex, Inc. ("Floraplex"), a wholly-owned subsidiary
of the Company; and
WHEREAS, the Board has determined that this Agreement will reinforce
and encourage the Executive's attention and dedication to the Company; and
WHEREAS, the Executive is willing to make his services available to the
Company on the terms and conditions hereinafter set forth.
NOW, THEREFORE, for the reasons set forth hereinabove, and in
consideration of the mutual promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby covenant and agree as follows:
1. EMPLOYMENT.
1.1 Employment and Term. The Company hereby agrees to employ
the Executive and the Executive hereby agrees to serve the Company on the terms
and conditions set forth herein.
1.2 Duties of Executive. During the Term of Employment under
this Agreement, the Executive shall serve as a Vice President of the Company and
the Chief Operating Officer for North and South America of Floraplex, shall
diligently perform all services as may be assigned to him by the Board (provided
that, such services shall not materially differ from the services currently
provided by the Executive), and shall exercise such power and authority as may
from time to time be delegated to him by the Board. The Executive shall
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devote his full time and attention to the business and affairs of the Company,
render such services to the best of his ability, and use his best efforts to
promote the interests of the Company. It shall not be a violation of this
Agreement for the Executive to: (i) serve on corporate, civic or charitable
boards or committees; (ii) deliver lectures, fulfill speaking engagements or
teach at educational institutions; or (iii) manage personal investments, so long
as such activities do not significantly interfere with the performance of the
Executive's responsibilities to the Company in accordance with this Agreement.
2. TERM.
2.1 Initial Term. The initial term of employment under this
Agreement, and the employment of the Executive hereunder, shall commence on July
1, 1999 (the "Commencement Date") and shall expire on June 30, 2003, (the
"Expiration Date") unless sooner terminated in accordance with Section 5 hereof.
2.2 Term of Employment. The period between the Commencement
Date and the Expiration Date, during which the Executive shall be employed by
the Company pursuant to the terms of this Agreement, is sometimes referred to in
this Agreement as the "Term of Employment."
3. COMPENSATION.
3.1 Base Salary. The Executive shall receive a base salary at
the annual rate of One Hundred Eighty Thousand ($180,000) Dollars (the "Base
Salary") during the Term of Employment, with such Base Salary payable in
installments consistent with the Company's normal payroll schedule, subject to
applicable withholding and other taxes. The Base Salary shall be reviewed, at
least annually (July 1), for merit increases and may, by action and in the
discretion of the Board, be increased at any time or from time to time.
3.2 Bonuses.
(a) The Executive shall receive bonuses in the total
annual amount of $70,000.00, to be paid equally on a quarterly basis, if the
Executive achieves 100% of his quarterly goals as determined by the Company in
its sole and absolute discretion;
(b) Any bonuses paid pursuant to this Section 3.2 are
sometimes hereinafter referred to as "Incentive Compensation."
4. EXPENSE REIMBURSEMENT AND OTHER BENEFITS.
4.1 Reimbursement of Expenses. Upon the submission of proper
substantiation by the Executive, and subject to such rules and guidelines as the
Company may from time to time adopt, the Company shall reimburse the Executive
for all reasonable expenses actually paid or incurred by the Executive during
the Term of Employment in the course of and
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pursuant to the business of the Company. The Executive shall account to the
Company in writing for all expenses for which reimbursement is sought and shall
supply to the Company copies of all relevant invoices, receipts or other
evidence reasonably requested by the Company.
4.2 Compensation/Benefit Programs. During the term of
Employment, the Company shall provide coverage for the Executive under: (a)
major medical and dental plans, including coverage for his family; (b)
disability and life insurance plans; and (c) any and all other plans as are
presently and hereinafter offered by the Company to its executives, including
savings, pension, profit-sharing and deferred compensation plans, subject to the
general eligibility and participation provisions set forth in such plans. The
Company shall reimburse the Executive for any deductible and/or co-insurance
payments he may incur under any major medical benefit plan providing coverage
pursuant to this Section 4.2; provided such payments are incurred and required
as a result of his continued use of the current pediatric physician for his
current child or any future children. The Company shall use reasonable efforts
to seek waivers of waiting periods, if any, applicable to any of the above
described benefits.
4.3 Working Facilities. During the Term of Employment, the
Company shall furnish the Executive with an office, secretarial help and such
other facilities and services suitable to his position and adequate for the
performance of his duties hereunder.
4.4 Automobile. During the Term of Employment, the Company
shall provide the Executive with a non-accountable automobile allowance of Six
Hundred Dollars ($600) per month, which amount is intended to: (a) compensate
the Executive for wear and tear; and (b) reimburse the Executive for all costs
of gasoline, oil, repairs, maintenance, insurance and other expenses incurred by
the Executive by reason of the use of the Executive's automobile for Company
business from time to time.
4.5 Stock Options. Upon the Commencement Date, the Executive
shall be granted an option (the "Stock Option") to purchase Two Hundred Thousand
(200,000) shares of common stock of the Company ("Common Stock") pursuant to
(and therefore subject to all terms and conditions of) the Company's 1999 Stock
Option Plan as amended, and any successor plan thereto (the "Stock Option
Plan"), as established by the Company, and all rules or regulations of the
Securities and Exchange Commission applicable to stock option plans then in
effect.
4.6 Other Benefits. The Executive shall be entitled to four
(4) weeks of vacation each calendar year during the Term of Employment, to be
taken at such times as the Executive and the Company shall mutually determine
and provided that no vacation time shall interfere with the duties required to
be rendered by the Executive hereunder. Any vacation time not taken by the
Executive during any calendar year may not be carried forward into any
succeeding calendar year. The Executive shall receive such additional benefits,
if any, as the Board of the Company shall from time to time determine.
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5. TERMINATION.
5.1 Termination for Cause. The Company shall at all times have
the right, upon written notice to the Executive, to terminate the Term of
Employment, for Cause. For purposes of this Agreement, the term "Cause" shall
mean: (a) an action or omission of the Executive which constitutes a material
breach of, or failure or refusal (other than by reason of his disability) to
perform his duties for which he was hired, which, if curable, is not cured
within fifteen (15) days after receipt by the Executive of written notice of
same; (b) commission of any act which involves fraud, embezzlement,
misappropriation of funds, or breach of fiduciary duty in connection with the
performance of his duties as an employee of the Company; (c) commission of any
crime which involves moral turpitude; or (d) gross negligence in connection with
the performance of the Executive's duties hereunder, which, if curable, is not
cured within fifteen (15) days after written receipt by the Executive of written
notice of same. Any termination for Cause shall be made in writing to the
Executive, which notice shall set forth in detail all acts or omissions upon
which the Company is relying for such termination. The Executive shall have the
right to address the Board regarding the acts set forth in the notice of
termination. Upon any termination pursuant to this Section 5.1, the Company
shall pay to the Executive his Base Salary to the date of termination. The
Company shall have no further liability under this Agreement other than for
reimbursement for reasonable business expenses incurred prior to the date of
termination, subject, however, to the Company's policy on reimbursements of
business expenses.
5.2 Disability. The Company shall at all times have the right,
upon written notice to the Executive, to terminate the Term of Employment, if
the Executive shall become entitled to benefits under the Company's disability
plan or program as then in effect, or, if the Executive shall as the result of
mental or physical incapacity, illness or disability, become unable to perform
his obligations hereunder for a period of 120 consecutive days or for an
aggregate of 180 days, whether or not consecutive, in any 12-month period. The
Company shall have sole discretion based upon competent medical advice to
determine whether the Executive continues to be disabled. Upon any termination
pursuant to this Section 5.2, the Company shall: (a) pay to the Executive any
unpaid Base Salary through the effective date of termination specified in such
notice; and (b) pay to the Executive a severance payment equal to six (6) months
of the Executive's Base Salary at the time of the termination of the Executive's
employment with the Company. Any payments made to the Executive pursuant to
subsection 5.2 (b) above shall be reduced by that amount of compensation or
monetary benefit received by the Executive from any third party from the time of
the termination of the Executive's employment with the Company until six (6)
months thereafter. The Company shall have no further liability under this
Agreement other than for reimbursement for reasonable business expenses incurred
prior to the date of termination, subject, however, to the Company's policy on
reimbursements of business expenses.
5.3 Death. Upon the death of the Executive during the Term of
Employment with the Company, the Company shall pay to the estate of the deceased
Executive any unpaid Base Salary through the Executive's date of death. The
Company shall have no further liability
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under this Agreement other than for reimbursement for reasonable business
expenses incurred prior to the date of termination, subject, however, to the
Company's policy on reimbursements of business expenses.
5.4 Termination Without Cause. The Company shall at all times
have the right, upon written notice to the Executive, to terminate the Term of
Employment. Upon any termination of the Executive's employment by the Company
(that is not a termination under any of Sections 5.1, 5.2, or 5.3), the Company
shall pay to the Executive: (a) any unpaid Base Salary through the effective
date of termination specified in such notice; and (b) an amount equal to the
Base Salary ("Termination Payment") in twelve (12) equal monthly payments
commencing one (1) month after the effective date of termination specified in
the termination notice described above. The amount of the Termination Payment
shall be reduced by that amount of compensation or monetary benefit received by
the Executive from any third party from the time of the termination of the
Executive's employment with the Company until the Termination Payment is paid in
full to the Executive. The Company shall have no further liability under this
Agreement other than for reimbursement for reasonable business expenses incurred
prior to the date of termination, subject, however, to the Company's policy on
reimbursements of business expenses. As a condition to receipt of the
Termination Payment: (x) concurrent with the receipt of the first monthly
payment of the Termination Payment, the Executive shall deliver to the Company a
general release in form acceptable to the Board releasing the Company from any
and all rights, claims, demands, judgments, obligations, liabilities and
damages, whether accrued or unaccrued, asserted or unasserted, and whether known
or unknown, relating to the Company which ever existed, then existed, or may
thereafter exist, by reason of the termination of this Agreement without cause,
except payment of the Termination Payment; and (y) the Executive shall notify
the Company if he receives any compensation or other monetary benefit from a
third party during the time period the Executive receives the Termination
Payment.
5.5 Termination by the Executive.
(a) The Executive shall at all times have the right,
upon sixty (60) days written notice to the Company, to terminate the Term of
Employment.
(b) Upon termination of the Term of Employment
pursuant to this Section 5.5 by the Executive without Good Reason, the Company
shall pay to the Executive any unpaid Base Salary (and Bonus due) through the
effective date of termination specified in such notice. The Company shall have
no further liability under this Agreement other than for reimbursement for
reasonable business expenses incurred prior to the date of termination, subject,
however, to the Company's policy on reimbursements of business expenses.
(c) Upon termination of the Term of Employment
pursuant to this Section 5.5 by the Executive for Good Reason, the Company shall
pay to the Executive the same amount of monies that would have been payable by
the Company to the Executive under Section 5.4 of this Agreement if the Term of
Employment had been terminated by the Company without Cause. The Company shall
have no further liability under this Agreement other than for
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reimbursement for reasonable business expenses incurred prior to the date of
termination, subject, however, to the Company's policy on reimbursements of
business expenses.
(d) For purposes of this Agreement, "Good Reason"
shall mean: (i) the assignment to the Executive of any duties materially
inconsistent with the Executive's current position (including status, offices,
titles and reporting requirements), authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial and inadvertent action not
taken in bad faith and which is remedied by the Company promptly after receipt
of notice thereof given by the Executive; (ii) any failure by the Company to pay
the Base Salary (and Bonus due) in installments consistent with the Company's
normal payroll schedule, subject to applicable withholding and other taxes,
other than an isolated, insubstantial and inadvertent failure not occurring in
bad faith and which is remedied by the Company promptly after receipt of notice
thereof given by the Executive; or (iii) the Company's requiring the Executive
to be based at any office or location outside of Florida, except for travel
reasonably required in the performance of the Executive's responsibilities.
5.6 Change in Control of the Company.
(a) In the event that: (i) a Change in Control (as
defined in subsection (b) of this Section 5.6) in the Company shall occur during
the Term of Employment; and (ii) prior to twelve (12) months after the date of
the Change in Control, either (x) the Term of Employment is terminated by the
Company other than pursuant to any of Sections 5.1, 5.2, or 5.3, or (y) the
Executive terminates the Term of Employment for Good Reason pursuant to Section
5.5(c) hereof, as defined in Section 5.5(d) hereof, the Company shall pay to the
Executive: (1) any unpaid Base Salary through the effective date of termination;
and (2) the same amount of monies that would have been payable by the Company to
the Executive under Section 5.4 of this Agreement if the Executive's employment
had been terminated by the Company without Cause. The Company shall have no
further liability under this Agreement other than for reimbursement for
reasonable business expenses incurred prior to the date of termination, subject,
however, to the Company's policy on reimbursements of business expenses.
(b) For purposes of this Agreement, the term "Change
in Control" shall mean:
(i) Approval by the Board, and shareholders
of the Company if required under applicable law, of: (1) a reorganization,
merger, consolidation or other form of corporate transaction or series of
transactions, in each case, with respect to which persons who were the
shareholders of the Company immediately prior to such reorganization, merger or
consolidation or other transaction do not, immediately thereafter, own 50% or
more of the combined voting power entitled to vote generally in the election of
directors of the reorganized, merged or consolidated company's then outstanding
voting securities, in substantially the same proportions as their ownership
immediately prior to such reorganization, merger, consolidation or other
transaction; (2) a liquidation or dissolution of the Company; or (3) the sale of
all or
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substantially all of the assets of the Company (unless such reorganization,
merger, consolidation or other corporate transaction, liquidation, dissolution
or sale is subsequently abandoned);
(ii) Individuals who, as of the Commencement
Date of this Agreement, constitute the Board (the "Incumbent Board") cease for
any reason to constitute at least a majority of the Board, provided that any
person becoming a director subsequent to the Commencement Date of this Agreement
whose election, or nomination for election by the Company's shareholders, was
approved by a vote of at least a majority of the directors then comprising the
Incumbent Board (other than an election or nomination of an individual whose
initial assumption of office is in connection with an actual or threatened
election contest relating to the election of the Directors of the Company, as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Securities Exchange Act) shall be, for purposes of this Agreement, considered as
though such person were a member of the Incumbent Board; or
(iii) the acquisition (other than from the
Company) by any person, entity or "group", within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act, of 50% or more of either
the then outstanding shares of the Company's Common Stock or the combined voting
power of the Company's then outstanding voting securities entitled to vote
generally in the election of directors (hereinafter referred to as the ownership
of a "Controlling Interest") excluding, for this purpose, any acquisitions by:
(1) the Company or its Subsidiaries; (2) any person, entity or "group" that as
of the Commencement Date of this Agreement owns beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act) of a
Controlling Interest; or (3) any employee benefit plan of the Company or its
Subsidiaries.
5.7 Resignation. Upon any termination of the Term of
Employment pursuant to this Article 5, the Executive shall be deemed to have
resigned as an officer, and if he or she was then serving as a director of the
Company, as a director, and if required by the Board, the Executive hereby
agrees to immediately execute a resignation letter to the Board.
5.8 Survival. The provisions of this Article 5 shall survive
the termination of this Agreement, as applicable.
6. RESTRICTIVE COVENANTS.
6.1 Confidential Information. The Executive hereby
acknowledges and agrees that in the course of his employment he will acquire
knowledge and will have access to information, whether in written, typed or
other form, regarding the business operations of the Company. Specifically, the
following types of information are deemed confidential ("Confidential
Information") and shall not be disclosed or used by the Executive except as
required and authorized in furtherance of the Company's business: specific
prospective customers of the Company; specific existing customers of the
Company; other individuals and businesses with whom the Company does business;
proprietary information; trade secrets, as defined in Section 688.002(4),
Florida Statute's; financial or corporate records; operational,
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sales, promotional, and marketing methods and techniques; computer programs,
including source codes and/or object codes; and/or any other proprietary,
competition sensitive, or technical information or secrets developed with or
without the help of the Executive.
6.2 Nondisclosure. The Executive shall not, during the term of
his employment, or at any time thereafter, either directly or indirectly,
communicate, publish, disclose, divulge, or use, or authorize anyone else to
communicate, publish, disclose, divulge, or use, for the benefit of himself or
any other person, persons, partnership, association, corporation, or other
entity, any Confidential Information which may be communicated to the Executive
or of which the Executive may be apprised by virtue of his employment with the
Company. Any and all information, knowledge, know-how, and techniques which the
Company designates as confidential shall be deemed confidential for purposes of
this Agreement, except information which the Executive can demonstrate came to
his attention prior to disclosure thereof by the Company; or which, at or after
the time of disclosure by the Company to the Executive, lawfully had become a
part of the public domain through lawful publication or communication by others.
6.3 Non-competition. The Executive covenants that, except as
otherwise approved in writing by the Company, the Executive shall not, during
the term of this Agreement, and for a continuous uninterrupted period of twelve
(12) months commencing upon the expiration or termination of the Executive's
employment relationship with the Company, regardless of the cause for
termination, individually, or jointly with others, either directly or
indirectly, for himself, or through, on behalf of, or in conjunction with any
person, persons, partnership, association, corporation, or other entity, own,
maintain, operate, engage in, or have any interest in any business enterprise
which is the same as, similar to or competitive with the Business, regardless of
the geographical location of such other business enterprise, and shall not
directly or indirectly act as an officer, director, employee, partner,
contractor, consultant, advisor, principal, agent, or proprietor, or in any
other capacity for, nor lend any assistance (financial, managerial, consulting
or otherwise) to or cooperate with, any such business enterprise; provided,
however, that such provision shall not apply to the Executive's ownership of
Common Stock of the Company or the acquisition by the Executive, solely as an
investment, of securities of any issuer that is registered under Section 12(b)
or 12(g) of the Securities Exchange Act of 1934, as amended, and that are listed
or admitted for trading on any United States national securities exchange or
that are quoted on the National Association of Securities Dealers Automated
Quotations System, or any similar system or automated dissemination of
quotations of securities prices in common use, so long as the Executive does not
control, acquire a controlling interest in or become a member of a group which
exercises direct or indirect control of more than ten percent of any class of
capital stock of such corporation.
6.4 Nonsolicitation of Employees and Clients. The Executive
specifically acknowledges that he will have access to Confidential Information,
including, without limitation, prospective and existing customers or customer
lists of the Company. The Executive covenants and agrees that during the term of
this Agreement, and for a continuous uninterrupted period of twelve (12) months,
commencing upon the expiration or termination of the Executive's relationship
with the Company, except as otherwise approved in writing by the Company, the
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Executive shall not, either directly or indirectly, for himself, or through, on
behalf of, or in conjunction with any person, persons, partnership, association,
corporation, or entity:
(a) Divert or attempt to divert or solicit any
prospective or existing customer of the Company to any competitor by direct or
indirect inducement or otherwise; or
(b) Employ or seek to employ any person who is at
that time employed by the Company, any affiliate of the Company, or otherwise
directly or indirectly induce or solicit such person to leave his or her
employment.
6.5 Reasonably Necessary. The Company and the Executive agree
that the Confidential Information set forth in Section 6.1 and the substantial
relationships with the Company's specific prospective and existing customers and
vendors: (i) are valuable, special, and a unique asset of the Company; (ii) have
provided and will hereafter provide the Company with a substantial competitive
advantage in the operation of its business; and (iii) are a legitimate business
interest of the Company. The Company and the Executive also agree that the
existence of these legitimate business interests justifies the need for the
restrictive covenants set forth in this Article 2, and the restrictive covenants
are reasonably necessary to protect the Company's legitimate business interests.
6.6 Reasonable Restrictions. The Executive agrees and
acknowledges; (a) that the geographical and time limitations contained in this
Agreement are reasonable and properly required for the adequate protection of
the business interests of the Company; and (b) the restrictions contained in
this Article 6 (including without limitation the length of the term of the
provisions of this Article 6) are not overbroad, overlong, or unfair and are not
the result of overreaching, duress or coercion of any kind. The Executive
further acknowledges and confirms that his full, uninhibited and faithful
observance of each of the covenants contained in this Article 6 will not cause
him any undue hardship, financial or otherwise, and that enforcement of each of
the covenants contained herein 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. The Executive
acknowledges and confirms that his special knowledge of the business of the
Company is such as would cause the Company serious injury or loss if he were to
use such ability and knowledge to the benefit of a competitor or were to compete
with the Company in violation of the terms of this Article 6. It is agreed by
the Executive that if any portion of the restrictions contained in this
Agreement are held to be unreasonable, arbitrary, or against public policy, then
the restriction shall be considered divisible, both as to the time and to the
geographical area, with each month of the specified period being deemed a
separate period of time, and each country or portion thereof of the specified
area being deemed a separate geographical area, so that the lesser period of
time or geographical area shall remain effective, so long as the same is not
unreasonable, arbitrary, or against public policy. The parties hereto agree that
in the event any court of competent jurisdiction determines the specified period
or the specified geographical area of the restricted territory to be
unreasonable, arbitrary, or against
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public policy, a lesser time period or geographical area which is determined to
be reasonable, non-arbitrary, and not against public policy may be enforced
against Seller.
6.7 Continuity of Restrictions. If the Executive shall violate
any of the terms or covenants contained herein, and if any court action is
instituted by the Company to prevent or enjoin such violation, then the period
of time during which the terms or covenants of this Agreement shall apply, as
provided in this Agreement, shall be lengthened by a period of time equal to the
period between the date of the initial breach of the terms or covenants
contained in this Agreement, whether or not the Company had knowledge of the
breach, and the date on which the decree of the court disposing of the issues
upon the merits shall become final and not subject to further appeal.
6.8 Books and Records. All notes, data, reference material,
sketches, drawings, memoranda, files, documents, specifications and any records
in any way relating to any of the Confidential Information or to the Company's
business, whether prepared by the Executive or otherwise coming into the
Executive's possession, shall remain the exclusive property of the Company and
shall not be removed from the premises of the Company under any circumstances
whatsoever without the prior written consent of the Company. Upon the request of
the Company, or absent such request, upon the termination of the Executive's
employment with the Company for any reason, the Executive shall immediately
return the Company all such property, materials and any and all copies thereof
in the Executive's possession.
6.9 Definition of Company. Solely for purposes of this Article
6, the term "Company" also shall include any existing or future subsidiaries of
the Company that are operating during the time periods described herein and any
other entities that directly or indirectly, through one or more intermediaries,
control, are controlled by or are under common control with the Company during
the periods described herein.
6.10 Survival. The provisions of this Article 6 shall survive
the termination of this Agreement, as applicable.
7. REMEDIES.
7.1 Liquidated Damages. The Executive and the Company hereby
acknowledge and agree that, in the event of any breach by the Executive,
directly or indirectly, of the foregoing restrictive covenants, it will be
difficult to ascertain the precise amount of damages that may be suffered by the
Company by reason of such breach; and accordingly, the parties hereby agree
that, as liquidated damages (and not as a penalty) in respect of any such
breach, the Executive shall be required to provide an accounting of any and all
benefits received or derived, either directly or indirectly, by the Executive as
a result of such breach, including, but not limited to, true and correct
financial records, or other data detailing the financial benefit the Executive
received or derived, directly or indirectly, from any and all violative acts or
activities, and the Executive thereafter shall be required to pay to the
Company, as damages, cash amounts equal to any and all gross revenues received
or derived by the Executive, directly or indirectly, from any
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and all violative acts or activities. The parties hereby agree that the
foregoing constitutes a fair and reasonable estimate of the actual damages that
might be suffered by reason of any breach of any of the covenants contained in
Article 6 of this Agreement by the Executive, and the parties hereby agree to
such liquidated damages in lieu of any and all other measures of damages that
might be asserted in respect of any subject breach.
7.2 Injunction. The Executive agrees that a violation or a
breach of the terms, covenants, or provisions contained in this Agreement would
cause irreparable injury to the Company, and that the remedy at law for any
violation or breach would be inadequate and would be difficult to ascertain, and
therefore, in the event of the violation or breach, or threatened violation or
breach of any such terms, covenants, or provisions contained in this Agreement,
the Company shall have the independent right to enjoin the Executive from any
threatened or actual activities in violation thereof. The Executive hereby
consents and agrees that temporary and permanent injunctive relief may be
granted in any proceedings which might be brought to enforce any such terms,
covenants, or provisions without the necessity of proof of actual damages or the
posting of a bond. In the event the Company does apply for such an injunction,
the Executive shall not raise as a defense thereto that the Company has an
adequate remedy at law.
8. ASSIGNMENT. The Executive shall not have the right to assign or
delegate his rights or obligations hereunder, or any portion thereof, to any
other person. This Agreement, and the Company's rights and obligations
hereunder, shall inure to the benefit of and be binding upon the Company's
successors and assigns.
9. INDEPENDENT COVENANTS. The parties agree that each of the covenants
and provisions contained in this Agreement shall be deemed severable and
construed as independent of any other covenant or provision.
10. SEVERABILITY. If all or any portion of a covenant or provision in
this Agreement is held invalid, unreasonable or unenforceable by a court or
agency having valid jurisdiction in an unappealed final decision to which the
Company is a party, the remaining covenants and provisions shall remain valid
and enforceable. The Executive expressly agrees to be bound by any lesser
covenant or provision subsumed within the terms of such covenant or provision
that imposes the maximum duty permitted by law, as if the resulting covenant or
provision were separately stated in, and made a part of this Agreement.
11. ATTORNEYS' FEES. In the event of a dispute regarding, arising out
of, or in connection with the breach, enforcement, or interpretation of this
Agreement, including, without limitation, any action seeking declaratory relief,
equitable relief, injunctive relief, or damages, or any litigation or cause of
action, including, without limitation, any appeals, federal bankruptcy
proceedings, receivership or insolvency proceedings, reorganization, or other
proceedings, the prevailing party shall recover all costs and reasonable
attorneys' fees incurred in connection therewith, including without limitation
at the pre-trial, trial and appellate levels, and any costs of collection.
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12. GOVERNING LAW. The validity, interpretation and enforcement of this
Agreement shall be governed by and construed in accordance with the local laws
of the State of Florida (without giving effect to its conflicts of laws
provisions), and to the exclusion of the law of any other forum, without regard
to the jurisdiction in which any action or special proceeding may be instituted.
13. EXCLUSIVE JURISDICTION; VENUE. EACH PARTY HERETO AGREES TO SUBMIT
TO THE PERSONAL JURISDICTION AND VENUE OF THE STATE AND/OR FEDERAL COURTS
LOCATED IN ORANGE COUNTY, FLORIDA FOR RESOLUTION OF ALL DISPUTES ARISING OUT OF,
IN CONNECTION WITH, OR BY REASON OF THE INTERPRETATION, CONSTRUCTION, AND
ENFORCEMENT OF THIS AGREEMENT, AND HEREBY WAIVES THE CLAIM OR DEFENSE THEREIN
THAT SUCH COURTS CONSTITUTE AN INCONVENIENT FORUM.
14. WAIVER OF JURY TRIAL. AS A MATERIAL INDUCEMENT FOR THIS AGREEMENT,
EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES
ALL RIGHTS TO A TRIAL BY JURY OF ANY ISSUES SO TRIABLE.
15. ENTIRE AGREEMENT. This Agreement contains and represents the entire
and complete understanding and agreement concerning and in reference to the
employment arrangement between the parties hereto. The parties hereto agree that
no prior statements, representations, promises, agreements, instructions, or
understandings, written or oral, pertaining to this Agreement, other than those
specifically set forth and stated herein, shall be of any force or effect.
16. MODIFICATIONS AND AMENDMENTS. This Agreement may not be, and shall
not be construed to have been modified, amended, rescinded, canceled, or waived,
in whole or in part, except if done so in writing and executed by the parties
hereto.
17. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and shall be personally delivered by courier, sent by
registered or certified mail, return receipt requested or sent by confirmed
facsimile transmission addressed as set forth herein. Notices personally
delivered, sent by facsimile or sent by overnight courier shall be deemed given
on the date of delivery and notices mailed in accordance with the foregoing
shall be deemed given upon the earlier of receipt by the addressee, as evidenced
by the return receipt thereof, or three (3) days after deposit in the U.S. mail.
Notice shall be sent: (a) if to the Company, addressed to 0000 Xxxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxx 00000, Attention: Chief Executive Officer; and (b) if to the
Executive, to his address as reflected on the payroll records of the Company, or
to such other address as either party hereto may from time to time give notice
of to the other.
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18. BENEFITS; BINDING EFFECT. This Agreement shall be for the benefit
of and binding upon the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and, where applicable,
assigns, including, without limitation, any successor to the Company, whether by
merger, consolidation, sale of stock, sale of assets or otherwise.
19. CONSTRUCTION. Each party to this Agreement had the opportunity to
consult with counsel of their choice and make comments concerning the Agreement.
No legal or other presumption against the party drafting this Agreement
concerning its construction, interpretation or otherwise accrue to the benefit
of any party to this Agreement and each party expressly waives the right to
assert such a presumption in any proceedings or disputes connected with, arising
out of, or involving this Agreement.
20. WAIVERS. The waiver by either party hereto of a breach or violation
of any term or provision of this Agreement shall not operate nor be construed as
a waiver of any subsequent breach or violation.
21. SECTION HEADINGS. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
22. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
other than the Company, the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and assigns, any rights or
remedies under or by reason of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this
Employment Agreement as of the date first above written.
COMPANY:
WORLD COMMERCE ONLINE, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Xxxxxx X. Xxxx
Chief Executive Officer/President
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx
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