EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is effective as
of July 1, 1996, by and between APOLLO INTERNATIONAL OF DELAWARE, INC., a
Delaware corporation ("Company"), and Xxxxxx Xxxx Xxxx ("Employee") currently
holding the position of Vice President International Sales.
W I T N E S S E T H:
WHEREAS, the Company believes that the attraction and retention of key
employees such as the Employee is essential to the Company's growth and success;
and
WHEREAS, the Company desires to employ Employee as its Vice President
International Sales and Employee desires to accept such employment, all on the
terms and conditions as hereinafter provided; and
WHEREAS, Employee is currently receiving compensation for services
rendered to the Company and/or its subsidiaries.
NOW, THEREFORE, intending to be legally bound hereby, the parties
hereto agree as follows:
1. Term. The Company hereby employs Employee and Employee hereby accepts
employment by the Company for a period of four (4) years beginning on the date
of this Agreement, subject to the terms and conditions hereafter contained. This
Agreement will be renewed automatically thereafter for successive periods of two
(2) years, unless not less than one hundred twenty (120) days prior to the end
of the initial four (4) year period, or one hundred twenty (120) days prior to
the end of any two (2) year renewal period, as the case may be, one of the
parties sends written notice to the other party of its intent to terminate this
Agreement at the end of such period.
2. Duties. The Company shall continue to employ Employee in an executive
capacity as Vice President of Operations of the Company. Employee shall perform
such duties ordinarily and customarily performed by a similar employee of a
corporation of like type and size as the Company, and shall perform such other
reasonable duties as a senior Company officer of the Board of Directors may
assign to him from time to time.
3. Base Salary
(A) As full compensation for services rendered under this Agreement, the Company
shall pay Employee, during the term of this Agreement, a base salary of Eighty
Thousand Dollars and No/100 ($80,000) per year (the "Base Salary"), payable in
accordance with the normal payroll practices of the Company. In addition to the
Base Salary, the Company will pay Employee three percent (3%) commission on all
sales outside of North America. In addition to
the Base Salary and commission, the Company may pay Employee bonuses from time
to time as set forth below.
(B) On each January 1, during the term of this Agreement, the base Salary
shall be increased to reflect the change in the cost of living, based upon the
change, fromthe proceeding January 1, in the Consumer Price Index for All Urban
Consumers, as published by the U.S. Bureau of Labor Statistics (reference base
1982-1984 = 100). On each January 1, and at any time that there is a change in
the financial condition or character of the business of the Company during the
term of this Agreement, the Board of Directors shall review the base salary
amount to determine whether or not to grant additional increases in the base
salary amount.
4. Stock Options. During the term of his employment, Employee will be provided
with stock options under the Company's stock option plan(s) as determined by the
Company's Board of Directors and/or Compensation Committee.
5. Performance Bonus. In addition to the annual Base Salary provided hereunder,
Employee may, at the discretion of the Board of Directors, be entitled to
additional incentive compensation ("Bonus").
6. Fringe Benefits. Employee shall be entitled to vacations, health care
benefits, fringe benefits and reimbursement for reasonable out-of-pocket
expense, including but not limited to those hereinafter detailed, in accordance
with the Company's practices covering Employee personnel. The Company shall use
reasonable efforts to seek waivers of waiting periods, if any, applicable to
particular benefits. Such benefits shall include:
A. coverage for Executive and his family, under any major medical and
dental insurance programs and plans, and under any short-term, long-term or
permanent disability programs and plans, which are or may become generally
available to management employees of the Company;
B. retirement benefits at such time and on such amounts as are paid to
Employee by the Company at such time as the Company institutes a retirement
plan;
C. reimbursement of all properly approved travel and business related
expenses normally paid by the Company for the benefit of its executives. All
expense reports must be approved by the Chief Financial Officer of the Company
prior to reimbursement;
D. three (3) weeks of paid vacation per calendar year at any time or times
selected by Employee taking into account the convenience of the Company.
Employee shall give the Board of Directors at least fourteen (14) calendar days'
prior notice of selected vacation times of one week or more. Unused vacation
will be cumulative from year to year.
2
E. six days of sick leave annually;
F. a holiday on the following days with full pay: New Year's Day,
Presidents' Day, Easter, Memorial Day, Independence Day, Labor Day, Thanksgiving
Day and Christmas Day, and such other holidays as the Company may declare; and
G. paid leave and reimbursement of all travel, tuition and related expenses
in attending trade conferences and/or seminars and/or college or other high
level courses acceptable to the Board of Directors in its reasonable discretion.
7. Termination by the Company for Cause.
A. The Company may, at its option, terminate this Agreement by giving
written notice of termination to Employee without prejudice to any other remedy
to which the Company may be entitled, either at law or in equity, under this
Agreement, in the event that:
(i) Employee is convicted of (and such conviction is sustained on final
appeal) or, pleads guilty to, or pleads nolo contendere to a felony crime
involving moral turpitude;
(ii) Employee is found by a court of law to be guilty (which guilty verdict
is sustained on final appeal) of or pleads guilty to or no contest to fraud,
conversion, embezzlement, intentionally falsifying records or reports, or a
similar felony involving the Company's property; or
(iii) Employee continues to willfully breach a material provision of this
Agreement after having received written notice of such breach and a thirty (30)
days' opportunity thereafter to cure such breach.
B. In the event of a termination claimed by the Company to be for "cause"
pursuant to clauses (i), (ii) or (iii) of this Section 7, Employee shall have
the right to have the justification for said termination determined by
arbitration. In such event, Employee shall serve on the Company within thirty
(30) days of termination, a written request for arbitration. The Company
immediately shall request the appointment of an arbitrator by the American
Arbitration Association and thereafter the issues shall be determined under the
rules of the American Arbitration Association and the decision of the arbitrator
shall be final and binding on both parties. The parties shall use all reasonable
efforts to facilitate and expedite the arbitration, and shall act to cause the
arbitration to be completed as promptly as possible. During the pendency of the
arbitration Employee shall continue to receive all compensation and benefits to
which he is entitled hereunder. Expenses of the arbitration shall be borne by
the Company pending a final determination of this matter at which time such
expenses shall be borne by the parties.
3
C. In the event of termination for any of the reasons set forth in
subsection A. of this Section 7, except as otherwise provided in Section 3 of
this Agreement, Employee shall be entitled to no further compensation, Base
Salary, Bonus or other benefits under this Agreement, except as to that portion
of any unpaid Base Salary, Bonus or other benefits accrued and earned by his
hereunder up to and including the final, non-appealable determination by
arbitration as to the justification for such termination for "cause", if
arbitration is invoked. If arbitration is not invoked Base Salary or Bonus and
unpaid benefits shall be accrued and earned up to and including the effective
date of such termination.
D. Anything herein to the contrary notwithstanding, the employment of the
Employee shall not be terminable by the Company for "cause" if the grounds for
such terminations are: (i) the result of bad judgment or poor economic results
on the part of Employee, (ii) any act or any omission believed by Employee in
good faith to have been in or not opposed to the interests of the Company, (iii)
any act or omission in respect of which a determination could properly be made
that Employee met the applicable standard of conduct prescribed for
indemnification or reimbursement or payment of expenses under the charter or
by-laws of the Company, or the laws of the State of Delaware, or the directors'
and officers' liability insurance if the Company, in each case as in effect at
the time of such act or omission, or (iv) as a result of an act or omission
which occurred more than twelve (12) calendar months prior to the Employee's
having been given notice of the termination of his employment for such act or
omission unless the commission of such act could not at the time of such
commission or omission have been known to a member of the Board of Directors of
the Company (other than Employee, if he is then a member of the board of
directors), in which case more than twelve (12) calendar months prior to the
date that the commission of such act or such omission was or could reasonably
have been so known, or (v) as a result of the continuing course of action which
commenced and was or could reasonably have been known to a member of the board
of directors of the Company (other than Employee) more than twelve (12) calendar
months prior to notice having been given to Employee of the termination of his
employment.
8. Termination by the Company; Death; or Permanent Disability.
A. If the Company terminates Employee "without cause" which shall mean for
any reason other than as set forth in Section 7 hereof, or in the event of
Employee's death or "permanent disability" (as defined below), Employee shall:
(i) be entitled to receive an amount equal to the full compensation to which he
would otherwise be entitled under this Agreement (just as if Employee had not
been so terminated and was continuing to serve as an employee hereunder for the
full term of this agreement) for a six (6) month period from the effective date
of such termination, death, or permanent disability (the "Severance Payment").
Such Severance Payment shall be payable in a single lump sum distribution
(without any present value adjustment) to Employee or his estate, as the case
may be, no later than ninety (90) days from the effective date of such
termination, and (ii) be provided, for a six (6) month period, with all the
insurance and other benefits set forth in Section 6.A. hereof (provided,
however, to the extent that the benefits in Section 6.A. cannot in fact be paid
due to the fact that Employee is not in fact employed
4
hereunder, the Company promptly shall pay Employee the indubitable monetary,
after tax equivalent thereof in U.S. Dollars, without any present value
adjustment).
B. Payment in the Event of Permanent Disability. For purposes of this
Agreement, Employee's "permanent disability" shall be deemed to have occurred
after one hundred twenty (120) days in the aggregate during any consecutive
twelve (12) month period, or after ninety (90) consecutive days, during which
one hundred twenty (120) or ninety (90) days, as the case may be, Employee, by
reason of his physical or mental disability or illness, shall have been unable
to discharge fully his duties under this Agreement. The date of permanent
disability shall be the one hundred twentieth (120th) or ninetieth (90th) day,
as the case may be. In the event Employee, after receipt of notice from the
Company, shall dispute that his permanent disability shall have occurred, he
shall promptly submit to a physical examination by the Chief of Medicine of any
major accredited hospital in the metropolitan area, Tampa, Florida, and, unless
such physician shall issue his written statement to the effect that in his
opinion, based on his diagnosis, Employee is capable of resuming his employment
and devoting his full time and energy to discharging his duties within ten (10)
days after the date of such statement, such permanent disability shall be deemed
to have occurred without further dispute by Employee or Company.
9. Termination by Employee. Employee may, at his option, after complying with
this Section, terminate this Agreement in the event of a material breach of the
terms of this Agreement by the Company. Employee shall be required to give
written notice to the Company setting forth with particularity the nature of the
material breach. The Company shall have thirty (30) days following its receipt
of Employee's written notice in which to cure its breach before Employee's
termination of this Agreement shall be effective. In the event Employee's
termination shall be effective under this Section 9, Employee shall: (i) be
entitled to receive the full compensation to which he would otherwise be
entitled under this Agreement (just as if Employee had not so terminated his
employment and was continuing to serve as an employee hereunder for the full
term of this Agreement (the "Continuation Period")) payable in a single sum
distribution (without any present value adjustment) on the date of such
termination, and (ii) be provided, for the Continuation Period, with all the
insurance and other benefits set forth in Section 6.A. hereof (provided,
however, to the extent that the benefits in Section 6.A. cannot in fact be paid
due to the fact that Employee is not in fact employed hereunder, the Company
promptly shall pay Employee the indubitable, after-tax monetary equivalent
thereof in U.S. Dollars, without any present value adjustment). If Employee
terminates this Agreement for any reason other than pursuant to this Section 9,
except as otherwise provided in Section 8 of this Agreement as it relates to the
death of Employee, Employee shall be entitled to no further compensation or
other benefits under this Agreement, except as to that portion of any unpaid
salary and other benefits accrued and earned by his hereunder up to and
including the effective date of such termination.
10. Confidential Information. Employee recognizes and acknowledges that the
Company has, through the expenditure of substantial time, effort and money,
developed and acquired certain confidential information and trade secrets which
have become of great value to the Company in its operations. Employee further
acknowledges and understands that in the course of performing his duties for the
Company, Employee has received and will receive special training and experience,
5
and has had and will have access to the trade secrets and confidential
information of the Company. Employee agrees that during the course of his
employment and at any time after the termination or expiration thereof, he will
not make any independent use of, publish or disclose, or authorize anyone to
publish or disclose, to any other person or organization, any of the Company's
trade secrets and confidential information, except as required in the course of
his employment with the Company or by law. Upon request of the Company and, in
any event upon the cessation of Employee's employment with the Company, whether
with or without cause, Employee will promptly return all tangible expressions of
trade secrets and confidential information in his possession and control and all
copies thereof. As used herein, the term "trade secrets and confidential
information" shall mean client lists, applicant lists, and other related client
and applicant data, computerized compilation of such data, training materials
and information, policy and procedure manuals, video and audio recordings of
training and operation methods, sales, services, support and marketing practices
and operations, advertising themes, formats of advertising and other business
methods, and techniques, processes and financial information of the Company, all
of which are not generally known to the trade or industry and which will be of
competitive use by them. "Trade secrets and confidential information" shall not
include intangible information which is generally known and used by persons with
training and experience comparable to Employee as of the date of this Agreement
and all intangible information which is common knowledge in the industry or
otherwise legally in the public domain.
Employee further agrees that the restrictions set forth in this Section 10
are in addition to, and not in lieu of, any other restrictions or obligations
placed upon his, and/or any rights or remedies available to the Company, by any
statute or at common law.
11. Covenant not to Compete. Employee covenants and agrees that, in order to
protect the Company's legitimate interest in its trade secrets and confidential
information, special training, and business during the term of his employment,
for a period of two (2) years following the expiration or termination of this
Agreement or any renewal of the Agreement, however the same shall occur, whether
voluntary or involuntary, Employee will not, without the prior written consent
of the Company, directly or indirectly:
A. engage, whether by virtue of stock ownership, management
responsibilities or otherwise, in companies, businesses, organizations and/or
ventures which manufacture, market or distribute products which are competitive
with any of the "Company's Products" (as hereinafter defined) anywhere in the
United States; or
B. become interested, directly or indirectly, whether as principal, owner,
stockholder, partner, agent, officer, director, employee, salesman, joint
venturer, consultant, advisor, independent contractor or otherwise, in any
person, firm, partnership, association, venture, corporation or entity engaging
directly or indirectly in any of the activities described in Subsection 11.A.
above; or
C. knowingly solicit the employment of any of the Company Personnel (as
hereinafter defined).
6
For purposes of this Agreement:
(i) the term "Company Personnel" shall mean any person employed by the
Company at any time through the end of the term of this Agreement, but excluding
any person who has left such employment for a continuous period exceeding one
(1) year;
(ii) the term "Company" shall include any successor in interest whether by
sale, merger, liquidation or the like, and any of the Company's subsidiaries and
affiliates;
(iii) the term "Company's Products" shall mean any present or future
(future being limited to the term of this Agreement and any and all extensions
thereof) product (i) being sold by the Company or (ii) any product designed,
engineered, manufactured, assembled, or enhanced (whether or not sold) by the
Company.
D. None of the foregoing shall prevent Employee from holding up to two
percent (2%) in the aggregate of any class of securities of any entity engaged
in the prohibited activities described above, provided that, such securities are
listed on a national securities exchange or registered under Section 12(g) of
the Securities and Exchange Act of 1934.
E. If any of the provisions contained in this Section 11 are held to be
unenforceable because of the duration of such provision, the geographical area
covered thereby, and/or the range of the Company's Products protected, the
parties agree that the court of competent jurisdiction making such determination
shall have the power to reduce or otherwise modify the duration, the
geographical area of such provision, and/or the range of the Company's Products
protected, and, in its reduced or modified form, such provisions shall then be
enforceable.
12. Remedies in Event of Breach.
A. Injunctive Relief. The parties acknowledge that each would be
irreparably harmed by any breach of the covenants contained in Sections 10 and
11 of this Agreement, and that either party's remedy at law for any breach by
the other party of its obligations under Sections 10 or 11 of this Agreement
would be inadequate, and would be impossible to ascertain and therefore, in the
event of the breach or threatened breach of any obligations under Sections 10
and 11 of this Agreement, either party, in addition to any and all other
remedies at law or in equity, shall have the right to enjoin the other party
from any threatened or actual activities in violation thereof; and the parties
hereby consent and agree that temporary and permanent injunctive relief may be
granted in any proceedings which might be brought to enforce any such covenants
without the necessity of proof of actual damages and without the necessity of
posting bond. In the event either party does apply for such injunction, the
other party shall not raise as a defense thereto that such applying party has an
adequate remedy at law.
B. Damages; Accounting for Profits. In addition to any injunctive relief
that may be granted to the Company or Employee for breach of this Agreement, the
Company and Employee
7
shall be entitled to recover all damages, including reasonable attorneys' fees
and costs (including paralegals' fees), sustained or incurred by the Company or
Employee by reason of a violation or threatened violation of the terms of this
Agreement, and to receive such other remedy or remedies as the court determines
is appropriate. Employee covenants and agrees that, if he violates any of his
covenants or agreements under Sections 10 or 11 hereof, the Company shall be
entitled to an accounting and repayment of all profits, compensations,
commissions, remunerations or benefits which Employee directly or indirectly has
realized or may realize as a result of, growing out of, or in connection with,
any such violation; such remedy shall be in addition to and not in limitation of
any injunctive relief or any other rights or remedies to which the Company is
nor may be entitled at law or in equity or under this Agreement.
13. Reasonableness. Employee has carefully read and considered the provisions of
Sections 10 and 11 hereof and, having done so, agrees that the restrictions set
forth in such sections, including, but not limited to, the time period of
restriction, the geographical areas of restriction, and the definition of
Company Products set forth therein, are fair and reasonable and are reasonably
required for the protection of the interests of the Company, and further that
the geographical area of restriction set forth therein accurately reflects the
area in which he will be actively engaged in the performance of services.
14. No Inconsistent Obligations. Employee represents and warrants that no action
required of his under this Agreement or any other agreements or understandings,
written or oral, entered into with the Company will conflict with, breach or
otherwise impair any previously existing agreements or understandings, whether
written or oral, into which Employee has entered with other persons or entities,
including agreements with respect to proprietary information or non-competition.
15. Indemnification. The parties shall enter into a separate indemnification
agreement, in form and substance mutually agreeable to the parties, within
ninety (90) days from the execution of this Agreement.
16. Notices. Any notice to be given hereunder shall be deemed to be given when
delivered by hand or by overnight courier to the party for whom the notice is
intended, or three (3) days after notice is placed in the U.S. mail properly
addressed to the party for whom notice is intended, at the following address:
8
If to the Company: APOLLO INTERNATIONAL OF DELAWARE, INC.
0000 Xxxxx X.X. Xxxxxxx 00 - Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
If to Employee: ____________________________
____________________________
17. Binding Effect and Governing Law. This Agreement supersedes all prior
understandings and agreements between the parties with respect to the subject
matter hereof. This Agreement shall be binding upon the legal representatives,
heirs, distributees, successors and assigns of the parties. The Agreement
contains the entire agreement of the parties, and may not be changed orally but
only in writing signed by the party against whom enforcement of any such change
is sought. It is agreed that a waiver by either party of a breach of any
provision of this Agreement shall not be operated or be construed as a waiver of
any subsequent breach by that same party. This Agreement shall be governed by
the laws of the State of Florida.
18. Severability. In the event that any terms or provisions of this Agreement
shall be held to be invalid or unenforceable by a court of competent
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remaining terms and provisions hereof.
19. Assignability. The rights or obligations contained in this Agreement shall
not be assigned, transferred, or divided in any manner by Employee or Company,
without the prior written consent of the other; provided, however, that nothing
in this Section 19 shall preclude Employee from designating a beneficiary to
receive any benefits hereunder upon his death, or the executors, administrator
or other legal representatives of Employee or his estate from assigning any
rights hereunder to the person(s) entitled thereto. Notwithstanding the
foregoing, this Agreement shall be binding on any entity which by purchase of
assets, merger, or otherwise, becomes a successor to the business of the
Company.
20. Headings. The headings of paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation and
performance of any of the provisions of this Agreement.
9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
COMPANY:
APOLLO INTERNATIONAL OF DELAWARE,
INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx,President
-----------------------------
EMPLOYEE:
Xxxxxx Xxxx Xxxx
/s/ Xxxxxx X. Xxxx
------------------
10
