EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into by and between High
Point Acquisition, Inc., a Florida corporation, (the “Company”), and Xxxx X.
Xxxxxx (“Employee”) effective as of January 1, 2007 ("Start Date").
RECITAL
The
Company desires to employ Employee, and Employee is willing to accept employment
by the Company, in each case on the terms and subject to the conditions set
forth in this Agreement.
NOW,
THEREFORE, the parties hereto hereby agree as follows:
AGREEMENT
1.
Position and Duties.
1.1
Position. During the term of this Agreement, Employee agrees to be
employed by and to serve the Company as Chief Executive Officer and President,
to perform such duties consistent with such position as may be assigned to
him
from time to time by the Board of Directors. Employee’s principal place of
business with respect to his services to the Company shall be Manatee County,
Florida, provided
that
Employee agrees to undertake such travel as may be required in the performance
of his duties. All travel expenses of Employee shall be reimbursed in accordance
with Section 3.3 (c) below.
1.2
Supervision and Direction.
Employee
shall carry out his duties under the general supervision and direction of the
Board of Directors of the Company in accordance with the Company’s policies,
rules and procedures in force from time to time.
1.3
Time Required. Employee shall devote his full time, attention, skill and efforts
to his tasks and duties hereunder to the affairs of the Company. Without the
prior written consent of the Company, Employee shall not provide services for
compensation to any other person or business entity during the Term of his
employment by the Company, as defined in paragraph 2.1, or engage in any other
business activity, whether or not such other business activity is pursued for
profit or pecuniary advantage unless approved by the Board of Directors,
provided, that investing in the public stock market shall not be deemed
"business activity" for purposes of this Section.
2.
Term of Employment, Termination.
2.1
Term.
The term
of employment under this Agreement (the “Term”) shall begin on Start Date and
shall continue through three calendar years after the Start Date (the
“Expiration Date”), unless earlier terminated in accordance with Article 2 or
extended pursuant to the following sentence. Unless written notice is given
by
the Company or Employee to the other at least ninety days prior to the
Expiration Date (or any later date to which the Term shall have been extended
in
accordance with this Section 2.1) advising that the one giving such notice
does
not desire to extend or does desire to further extend this Agreement, the Term
shall automatically be extended for additional one-year periods without further
action of either the Company or Employee.
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2.2
Termination for Cause. Termination
for Cause (as defined in Section 2.8(a) below) may be effected by the Company
at
any time during the Term of this Agreement and shall be effected by written
notification to Employee from the Chairman of the Board of Directors or by
action of a majority of the directors, in the event the Employee is the
Chairman, stating the reason for termination. Such termination shall be
effective immediately upon the giving of such notice, unless the Board of
Directors shall otherwise determine. Upon Termination for Cause, Employee shall
be paid all accrued salary, any benefits under any plans of the Company in
which
Employee is a participant to the full extent of Employee’s rights under such
plans, accrued vacation pay and
any
appropriate business expenses incurred by Employee in connection with his duties
hereunder prior to such termination, all to the date of termination, but
Employee shall not be entitled to any other compensation or reimbursement of
any
kind, including without limitation, severance compensation.
2.3
Voluntary Termination. In the event of a Voluntary Termination (as defined
in Section 2.8(c) below), the Company shall pay to Employee all accrued salary,
bonus compensation to the extent earned, any benefits under any plans of the
Company in which Employee is a participant to the full extent of Employee’s
rights under such plans, accrued vacation pay and any appropriate business
expenses incurred by Employee in connection with his duties hereunder, all
to
the date of termination, but no other compensation or reimbursement of any
kind,
including without limitation, severance compensation. Employee may affect a
Voluntary Termination by giving sixty (60) days’ written notice of such
termination to the Company.
2.4
Termination by Death. In the event of Employee’s death during the Term of
this Agreement, Employee’s employment shall be deemed to have terminated as of
the last day of the month during which his death occurs and the Company shall
pay to his estate or such beneficiaries, as Employee may from time to time
designate, all accrued salary, any benefits under any plans of the Company
in
which Employee is a participant to the full extent of Employee’s rights under
such plans, accrued vacation pay and any appropriate business expenses incurred
by Employee in connection with his duties hereunder, all to the date of
termination, but Employee’s estate shall not be paid any other compensation or
reimbursement of any kind, including without limitation, severance
compensation.
2.5
Termination by Reason of Disability. If, during the Term of this
Agreement, a physician selected by the Company certifies that Employee has
become physically or mentally incapacitated or unable to perform his full-time
duties under this Agreement, and that such incapacity has continued for a period
of 180 calendar days within any period of 365 consecutive days, the Company
shall have the right to terminate Employee’s employment hereunder by written
notification to Employee, and such termination shall be effective on the seventh
day following the giving of such notice (“Termination by Reason of Disability”).
In such event, the Company will pay to Employee all accrued salary, any benefits
under any plans of the Company in which Employee is a participant to the full
extent of Employee’s rights under such plans, accrued vacation pay, any
appropriate business expenses incurred by Employee in connection with his duties
hereunder, all to the date of termination, and all severance compensation
required under Section 4.1, but Employee shall not be paid any other
compensation or reimbursement of any kind. In the event of a Termination by
Reason of Disability, upon the termination of the disability, the Company will
use its best efforts to reemploy Employee, provided that such reemployment
need
not be in the same capacity or at the same salary or benefits level as in effect
prior to the Termination by Reason of Disability.
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2.6
Employee’s Obligation Upon Termination. Upon the Termination of Employee’s
employment for any reason, Employee shall within ten days of such termination
return to the Company all personal property and proprietary information in
Employee’s possession belonging to the Company. Unless and until the Employee
has complied with this Section (which shall be determined by the Company's
standard termination and check-out procedures), the Company shall have no
obligation to make any payment of any kind to Employee hereunder.
2.7
Definitions. For purposes of this Agreement the following terms shall have
the following meanings:
(a)
“Termination for Cause” shall mean termination by the Company of
Employee’s employment by the Company by reason of:
(i)
Employee’s willful dishonesty towards, fraud upon, or deliberate injury or
attempted injury to, or breach of fiduciary duty to, the Company;
(ii)
Employee’s material breach of this Agreement, including any Exhibit hereto, or
any other agreement to which Employee and the Company are parties;
(iii)
Employee’s use or possession of illegal drugs at any time, use of alcoholic
beverages during working hours or on Company property except when specifically
allowed by a company sponsored function, improper use of prescription drugs
during working hours or on Company property or Employee reporting to work (which
includes activities away from Company offices) under the influence of illegal
drugs or alcohol;
(iv)
Conduct by Employee, whether or not in connection with the performance of the
duties contemplated hereunder, that would result in serious prejudice to the
interests of the Company if Employee were to continue to be employed, including,
without limitation, the conviction of a felony or a good faith determination
by
the Board of Directors that Employee has committed acts involving moral
turpitude;
(v)
Any material violation of any rule, regulation or policy of the Company by
Employee or Employee’s failure to follow reasonable instructions or directions
of the Board of Directors of the Company (as it relates to the Employee’s
written job description) or any policy, rule or procedure of the Company in
force from time to time. All Company policies, rules, regulations and procedures
currently in force must be provided to Employee in writing before execution
of
this Agreement. Any changes to Company policies, rules and procedures must
be
provided to Employee in writing ten days prior to the changes becoming
effective.
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(b)
“Voluntary Termination” shall mean termination by Employee of Employee’s
employment other than (i) Termination by Reason of Disability and (ii)
Termination by reason of Employee’s Death.
3.
Salary, Benefits and Bonus Compensation.
3.1
Base Salary. As payment for the services to be rendered by Employee as
provided in Section 1 and subject to the terms and conditions of Section 2,
the
Company agrees to pay to Employee a “Base Salary at an initial rate of $175,000
per annum payable in accordance with the Company’s regular payroll practices
(twice monthly). Such rate and Employee’s performance shall be reviewed by the
Company’s Board of Directors on an annual basis, commencing Starting Date, for a
determination of whether an adjustment in Employee’s Base Salary should be made,
which adjustment shall be in sole discretion of the Company’s Board of
Directors.
3.2
Partial Payments. Until appropriate level of funding is obtained, the Company
may make partial payments of the base salary, provided that the Employee may
waive salary during the period prior to funding. The remaining amount unpaid
shall be accrued and owed to the Employee. The Employee shall have the option
to
receive the accrued amount in cash or in common shares of the Company at a
rate
of $0.10 per share until such time as the Company sells shares for cash to
investors, at which time the payment of salary in shares shall be calculated
at
the sale price to investors most recently preceding accrual of the salary paid
in shares.
3.3
Bonus. The Board of Directors will establish a goals for the Company each year,
which may include a target revenue goal, consummation of a merger with a
candidate, asset base, etc. Employee shall be entitled to a bonus of computed
as
a per percentage of revenue over the goal established by the Board, or a
specific dollar number an/or additional common stock of the Company for the
attainment of other established goals.
3.4
Additional Benefits. During the Term of this Agreement, Employee shall be
entitled to the following fringe benefits:
(a)
Employee Benefits. Employee
shall be included in all group insurance plans and other benefit plans and
programs made available to management Employees of the Company.
(b)
Vacation Employee
is entitled to take four weeks paid vacation within one year from his Starting
Date.
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(c)
Reimbursement for Expenses. The
Company shall reimburse Employee for reasonable out-of-pocket business, travel
and entertainment expenses incurred by Employee in connection with his duties
under this Agreement in accordance with the Company’s reimbursement policy in
effect from time to time. To receive reimbursement, the Employee must submit
a
monthly, written expense report, attaching receipts thereto, listing all
expenses to be reimbursed, the amount of each, the business purpose or benefit
of the expense and such other information as may be required to satisfy the
requirements of the Internal Revenue Code for deduction of such expenses by
the
Company. Company’s reimbursement policy currently in force must be provided to
Employee in writing before execution of this Agreement. Any changes to Company’s
policy must be provided to Employee in writing thirty (30) days prior to the
changes becoming effective.
(d)
Automobile Allowance. The Company shall pay to or for the benefit of Employee
an
automobile allowance of $1,000 per month, which may include a vehicle lease
payments for an automobile selected by Employee and leased by the Company;
provided, that in the event a cash payment is required for a leased vehicle,
the
cash payment shall be amortized over the lease term for purposes of the monthly
automobile allowance provided herein.
4.
Severance Compensation.
4.1
Acceleration of Payments. The Company may, in the Company’s sole
discretion, if Employee so requests within thirty days following a Termination
by Reason of Disability, elect to pay to Employee a lump sum severance payment
by bank cashier’s check equal to the present value of the flow of cash payments
that would otherwise be paid to Employee.
4.2.
No Severance Compensation Under Other Termination. In the event of a
Voluntary Termination, Termination for Cause, or Termination by reason of
Employee’s Death, neither Employee nor his estate shall be paid any severance
compensation.
5.
Other Agreements. Employee agrees that to induce the Company to enter into
this
Agreement, he has concurrently executed and delivered to the Company (a) an
Employee Non-Disclosure Agreement and Proprietary Rights Assignment dated as
of
event date herewith, in the form of Exhibit
A
hereto,
and (b) a Non-Solicitation and Non-Competition Agreement dated as of even date
herewith, in the form of Exhibit
B
hereto.
Employee hereby covenants and agrees to fully abide by each and every term
of
such agreements, and agrees and understands that a breach or violation by
Employee of any provision of any provision of either of such agreements shall
constitute grounds for Termination for Cause under Section 2.8(a)(ii) of this
Agreement, and that no such termination shall limit or affect any other rights
and remedies of the Company arising out of or in connection with any such breach
or violation. The covenants on the part of Employee contained in such agreements
shall survive termination of this Agreement, regardless of the reason for such
termination, unless specifically excluded by this agreement.
Employee
hereby represents and acknowledges that the Company is relying on the covenants
contained in such agreements in entering into this Agreement, and that the
terms
and conditions of the covenants contained in such agreements are fair and
reasonable.
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6.
Miscellaneous.
6.1
Waiver. The waiver of the breach of any provision of this Agreement shall
not operate or be construed as a waiver of any subsequent breach of the same
or
other provision hereof.
6.2
Entire Agreement; Modifications. This Agreement represents the entire
understanding among the parties with respect to the subject matter hereof,
and
this Agreement supersedes any and all prior understandings, agreements, plans
and negotiations, whether written or oral with respect to the subject matter
hereof including without limitation, any understandings, agreements or
obligations respecting any past or future compensation, bonuses, reimbursements
or other payments to Employee from the Company. All modifications to this
Agreement must be in writing and signed by both parties hereto.
6.3
Notices. All notices and other communications under this Agreement shall be
in
writing and shall be given by first class mail, certified or registered with
return receipt requested, and shall be deemed to have been duly given three
(3)
days after mailing to the respective persons named below:
If
to the
Company:
High
Point Acquisition, Inc.
00000
Xxxxxx Xxxx 000
Xxxxxx
xxxx, Xx. 34251
Attn:
Xxxx Xxxxxx
President
If
to
Employee: Xxxx X. Xxxxxx
00000
Xxxxxx Xxxx 000
Xxxxxx
Xxxx, Xx. 00000
Any
part
may change such party’s address for notices by notice duly given pursuant to
this Section
6.4
Headings. The Section headings herein are intended for reference and shall
not
by themselves determine the construction or interpretation of this
Agreement.
6.5
Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida.
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6.6
Severability. Should a court or other body of competent jurisdiction determines
that any provision of this Agreement is invalid or unenforceable, such provision
shall be adjusted rather than voided, if possible, and all other provisions
of
this Agreement shall be deemed valid and enforceable to the extent
possible.
6.7
Benefits of Agreement. The provisions of this Agreement shall be binding upon
and inure to the benefit of the executors, administrators, heirs, successors
and
assigns of the parties; provided,
however, that
except as herein expressly provided, this Agreement shall not be assignable
either by the Company (except to an affiliate of the Company) or by
Employee.
6.8
Counterparts. This Agreement may be executed in one or more counterparts, all
of
which taken together shall constitute one and the same Agreement.
6.9
Withholdings. All compensation and benefits to Employee hereunder shall be
subject to all applicable federal, state, local and other withholdings and
similar taxes and other payments required by applicable law.
6.10
Remedies. All rights and remedies of the Company and of the Employee
hereunder shall be cumulative and the exercise of any right or remedy shall
not
preclude the exercise of another.
6.11
Interpretation Review. Counsel in the negotiation and execution of this
Agreement has represented both parties to this Agreement, and no inference
shall
be drawn against the drafting party. Employee acknowledges that he has in fact
reviewed and discussed this Agreement with his counsel and that he understands
and assents to the terms hereof.
6.12
Arbitration. Any controversy or claim arising out of or relating to this
agreement, or breach thereof (other than any action by the Company seeking
an
injunction or equitable relief under the Employee Non-Disclosure Agreement
and
Proprietary Rights Assignment or the Non-Solicitation and Non-Competition
Agreement executed by the Employee, as amended from time to time) shall be
settled by binding arbitration to be held in Tampa, Florida, in accordance
with
the Rules of the American Arbitration Association, and judgment upon any proper
award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. There shall be three arbitrators, one to be chosen
directly by each party at will, and the third arbitrator to be selected by
the
two arbitrators so chosen. To the extent permitted by the rules of the American
Arbitration Association, the selected arbitrators may grant equitable relief.
Each party shall pay the fees of the arbitrator selected by him and his own
attorneys, and the expenses of his witnesses and all other expenses connected
with the presentation of his case. The cost of the arbitration including the
cost of the record of transcripts thereof, in any, administrative fees, and
all
other fees and cost shall be borne equally by the parties. The rules of
discovery of the Federal District Court for the Middle District of Florida
shall
govern discovery conducted by the parties, who shall have the right to apply
to
said court for enforcement thereof.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement effective
as of
the day and year first above written.
| HIGH POINT ACQUITION, INC. | EMPLOYEE | |||
| By: | /s/ Xxxxxxxx X. Xxxxx | /s/ Xxxx X. Xxxxxx | ||
|
Xxxxxxxx X. Xxxxx, Treasurer |
Xxxx X. Xxxxxx |
|||
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EXHIBIT
"A"
EMPLOYEE
NON-DISCLOSURE AGREEMENT
AND
PROPRIETARY RIGHTS ASSIGNMENT
In
return
for new or continued employment by High Point Transport, Inc. ("Company "),
the
undersigned, Xxxx X. Xxxxxx, (“Employee”) agrees as follows:
1.
I agree during the Term of my employment to promptly disclose and describe
to the Company all ideas, inventions, improvements, discoveries, enhancements,
modifications, technical developments, and works of authorship (including all
writings, computer programs, software and firmware), whether or not patentable
or copyrightable, and whether in oral, written, or in machine readable form,
which relate to or may be deemed to be useful to the Company’s business as
presently conducted or as it may be conducted in the future, which are
conceived, reduced to practice, or authored by me, solely or jointly with
others, at any future time within the scope of my employment or with the use
of
the Company’s time, material, facilities or funds (the “Work
Product”).
2.
I hereby assign to the Company my entire right to all of the Work Product and
agree that the Work Product is and will be the sole and exclusive property
of
the Company. I will not, however, be required to assign to the Company any
invention that I developed entirely on my own time without using the Company’s
funds, equipment, materials or facilities, unless such invention either: (i)
relates to the Company’s business or actual or demonstrably anticipated research
or development of the Company, or (ii) results from or is related to or
suggested by any Company research, development or other activities, including
without limitation any work performed by me for the Company. I agree to take
any
acts and to execute any documents that the Company reasonably requests in order
to evidence any assignment that I am required to make under this paragraph.
Except for any written agreement between the Company, and me I will not be
entitled to any royalty, commission, or other payment or license or right with
respect to the Work Product except as specifically agreed to in this
agreement.
3.
No Work Product will be made available by me to others during or following
the term of my employment unless the Company consents in writing except as
specifically agreed to in this agreement.
4.
I hereby grant and agree to grant to the Company the right to obtain, for its
benefit and in its name, patents and patent applications (including without
limitation original, continuation, reissue, utility and design patents, patents
of addition, confirmation patents, registration patents, utility models, etc.,
and all other types of patents and the like, and all renewals and extensions
of
any of them) for the Work Product in all countries.
5.
Both during and after the term of my employment, I will maintain in confidence,
and will not disclosure or use or retain for my benefit or the benefit of anyone
other than the Company any secret, proprietary or confidential information
or
trade secrets or know-how belonging to or in the possession of the Company
(the
“Proprietary
Information”),
except to the extent required to perform my assigned duties on behalf of the
Company in my capacity as an Employee of the Company. The Proprietary
Information which I agree to maintain in confidence includes, but is not limited
to, technical and business information relating to the Company’s inventions or
products, research and development, finances, customers, marketing, future
business plans, machines, equipment, services, systems, supply sources, cost
of
operations, business dealings, pricing methods, regulatory matters, software,
contracts, contract performance, formulae, processes, business methods, and
any
information belonging to customers and suppliers of the Company which may have
been disclosed to me as the result my being as an Employee of the Company.
My
promise to maintain the confidentiality of the Proprietary Information will
apply whether or not the Proprietary Information is in written or permanent
form, whether or not is was developed by me or by others employed by the Company
or was obtained by the Company from third parties, and whether or not the
Proprietary Information has been identified by the Company as secret or
confidential except as specifically agreed to in this agreement.
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6.
All records, reports, notes, compilations or other recorded matter, and
any copies or reproductions thereof, that relate to the Company’s operations,
activities, or business, which were made or received by me during the term
of my
employment (the “Company
Materials”)
are
and shall continue forever to be the Company’s exclusive property, and I will
keep the same at all times in the Company’s custody and subject to its control.
Upon termination of my employment or at the request of the Company before
termination, I will deliver to the Company all written and tangible material
in
my possession incorporating the Work Product, the Proprietary Information and
the Company Materials except as specifically agreed to in this
agreement.
7.
I agree to cooperate with the Company or its designees, both during and
after the term of my employment, in procuring, maintaining and protecting the
Company’s rights in the Work Product and the Proprietary Information, including
without limitation patents and copyrights. I will sign all papers which the
Company deems necessary or desirable for the procurement, maintenance and
protection of such rights. I will keep and maintain adequate and current written
records of all Work Product in the form of notes, sketches, drawings, or reports
related to the Work product in the manner and form requested by the Company,
and
such records shall be and remain the property of the Company and be available
to
the Company at all times except as specifically agreed to in this
agreement.
8.
There is no other contract or duty on my part now in existence to assign Work
Product or that is inconsistent with this Agreement. I will not disclose or
induce the Company to use or bring onto the Company’s premises any confidential
information or material that I am now aware of or become aware of which belongs
to anyone other than the Company. During my employment by the Company, I will
not accept or engage in any employment, consulting, or other activity (a)
detrimental or incompatible with my obligations to the Company, including
without limitation my obligations under this Agreement, or (b) in any business
competitive with the Company’s business as it is presently conducted or as it
may be conducted at any future time during my employment.
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9.
I acknowledge that my obligations and promises under this Agreement are of
a
unique and intellectual character, which gives them particular value. A breach
of any of the promises or agreements contained herein will result in irreparable
and continuing damage to the Company for which there will be no adequate remedy
at law, and I agree that in addition to any other rights and remedies of the
Company for such breach (including monetary damages, if appropriate), the
Company is entitled to injunctive relieve and/or a decree for specific
performance if I breach this Agreement. All rights and remedies of the Company
for a breach by me of this Agreement shall be cumulative and the exercise of
any
right or remedy by the Company will not preclude the exercise of
another.
10.
Unless there is a written employment agreement for a specified term in
effect between the Company, and the Company or I may terminate my employment
at
any time, with or without cause, however, such termination will not affect
the
Company’s rights or my obligations under this Agreement except as specifically
defined in this agreement. This Agreement represents the entire understanding
between me and the Company as to the subject matter hereof. This Agreement
may
not be modified or amended except in a written document signed by me and the
Company. This Agreement shall inure to the benefit of the Company’s successors
and assigns and shall be binding on my heirs, administrators and legal
representatives.
11.
If the Company waives a breach by me of any provision of this Agreement, such
waiver shall not operate or be construed as a waiver of any other or subsequent
breach by me. If any provision of this Agreement is held to be invalid, void,
or
unenforceable, the remaining provisions shall nevertheless continue in full
force and effect without being impaired or invalidated in any way.
12.
I agree that my promises contained in this Agreement are a material inducement
to the Company’s giving me employment, that the matters I have agreed to are
fair and reasonable under the circumstances, that any Proprietary Information
I
receive during the course of my employment may affect the effective and
successful conduct of the Company’s business and goodwill, and that the
proprietary Information is provided to me in confidence due to my employment
and
my need to know such information in order to completely and competently perform
my duties and obligations on behalf of the Company.
13.
I agree that Article 6 - Miscellaneous of my Employment Agreement with the
Company is incorporated herein by this reference
14.
This Agreement shall be governed by and construed in accordance with the laws
of
the State of Florida.
| HIGH POINT TRANSPORT, INC. | EMPLOYEE | |||
| By: | /s/ Xxxxxxxx X. Xxxxx | /s/ Xxxx X. Xxxxxx | ||
|
Xxxxxxxx X. Xxxxx, Treasurer |
Xxxx X. Xxxxxx |
|||
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EXHIBIT
"B"
Non-Solicitation
and Non-Competition Agreement
This
Non-Solicitation and Non-Competition Agreement (“Agreement”) is made and entered
into as of the date set forth below, by Xxxx X. Xxxxxx (“Employee”) in favor and
for the benefit of High Point Transport, Inc., a Florida corporation (the
“Company”)RECITALS In
order
to induce the Company to enter into and perform that certain Employment
Agreement dated as of even date herewith between the Company and Employee (the
“Employment Agreement” and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Employee hereby agrees
as follows:
1.
Non-Solicitation; Non-Competition.
The
period from the Start Date through the Termination Date, as defined in Section
2
of the Employment Agreement, plus one year after the Termination Date is defined
for this Agreement as the “Non-Competition Period”. During the Non-Competition
Period, Employee shall not, without the Company’s prior written consent,
directly or indirectly, (a) call on any person or entity who, at the time of
such call, is a customer of the Company or any parent or subsidiary of the
Company, with respect to the purchase of any goods or services which are, at
the
time, being offered by the Company or any parent or subsidiary of the Company
or
which are under development by the Company or any parent or subsidiary of the
Company at the time of Employee’s employment, (b) solicit or induce or attempt
to solicit or induce any customer of the Company or any parent or subsidiary
of
the Company to reduce, or take any action which would reduce, its business
with
the Company or any parent or subsidiary of the Company, (c) solicit or attempt
to solicit any Employees of the Company or any parent or subsidiary of the
Company to leave the employ of the Company or any parent or subsidiary of the
Company, or (d) hire any Employees or former Employees of the Company or any
parent or subsidiary of the Company or cause any entity with which Employee
is
affiliated or in which Employee owns an equity interest to hire any such
Employees or former Employees except as specifically defined in this agreement.
As used herein, the term “former Employee” means a person who has been an
Employee of the Company or any parent or subsidiary of the Company within the
twelve-month period prior to the date of determination.
2.
Notice of Subsequent Employment. Employee
agrees that during the Non-Competition Period Employee will keep the Company
informed of the names and addresses of all persons, firms or corporations by
or
for whom he is employed from time to time, or for whom he acts as agent or
consultant or in whom he may own any one percent (1%) or more equity interest;
and Employee also agrees that if, during such time, he conducts any business
on
his own account or as a partner or co-venturer, he shall keep the Company
informed of that fact and of the nature, names and addresses of such business
as
conducted from time to time.
3.
Breach. Employee
agrees that a remedy at law for breach of the covenants contained herein would
be inadequate, that the Company would suffer irreparable harm as a result of
such breach and that in addition to any other rights and remedies of the Company
for such breach, the Company shall be entitled to apply to a court of competent
jurisdiction for temporary and permanent injunction or an order for specific
performance of such covenants, and, if the Company prevails, to recover from
Employee all costs of any such action brought by the Company, including without
limitation reasonable attorneys’ fees and expenses.
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4.
Enforcement. It
is the
desire and intent of Employee that the covenants of Employee contained herein
shall be enforced to the fullest extent permissible under the laws and public
policies of each jurisdiction in which enforcement is sought. If any particular
provision(s) of this Agreement shall be adjudicated to be invalid or
unenforceable, such provision(s) shall be deemed amended to provide restrictions
to the fullest extent permissible, consistent with applicable law and policies,
and such amendment shall apply only with respect to the particular jurisdiction
in which such adjudication is made. If such deemed amendment is not allowed
by
the adjudicating body, the offending provision shall be deleted and the
remainder of this Agreement shall not be affected. This Agreement shall be
in
addition to and not in lieu of any other noncompetition or similar covenants
of
Employee entered into prior to or after the date hereof (unless otherwise
provided in a written agreement signed by the Company).
5.
Miscellaneous.
5.1
Waiver. The
waiver of the breach of any provision of this Agreement shall not operate or
be
construed as a waiver of any subsequent breach of the same or other provision
hereof.
5.2
Modification;
Amendment. Any
modification or amendment to this Agreement must be in writing and signed by
the
Company and Employee.
5.3
Notices. All
notices and other communications under this Agreement shall be in writing and
shall be given as specified in Section 6.3 of the Employment
Agreement.
5.4
Headings. The
Section headings herein are intended for reference and shall not by themselves
determine the construction or interpretation of this Agreement.
5.5
Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Florida.
5.6
Severability. Should
a
court or other body of competent jurisdiction determine that any provision
of
this Agreement is excessive in scope or otherwise invalid or unenforceable,
such
provision shall be adjusted rather than voided, if possible, and all other
provisions of this Agreement shall be deemed valid and enforceable to the extent
possible.
5.7
Benefits of Agreement. The
provisions of this Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of Employee, and shall inure
to
the benefit of the Company and its successors and assigns.
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5.8
Remedies. All
rights and remedies of the Company hereunder shall be cumulative and the
exercise of any right or remedy shall not preclude the exercise of
another.
5.9
Interpretation; Review. Employee
acknowledges that he has in fact reviewed and discussed this Agreement with
his
counsel and that he understands and voluntarily agrees to all of the terms
hereof.
5.10
I agree that Article 6 - Miscellaneous of my Employment Agreement with the
Company is incorporated herein by this reference
IN
WITNESS WHEREOF,
the
undersigned Employee has executed this Agreement effective as of Jan. 1,
2007
| HIGH POINT TRANSPORT, INC. | EMPLOYEE | |||
| By: | /s/ Xxxxxxxx X. Xxxxx | /s/ Xxxx X. Xxxxxx | ||
|
Xxxxxxxx X. Xxxxx, Treasurer |
Xxxx X. Xxxxxx |
|||
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