EXHIBIT 10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this Agreement") is effective as of the 28th
of day June, 2000, (the "Commencement Date") between TechLabs, Inc., a Florida
corporation (the "Company") whose principal place of business is 0000 Xxxx Xxxxx
Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 , and Xxxxxx X. Xxxxx an individual (the
"Executive") whose address is c/o 0000 Xxxx Xxxxx Xxxxx, Xxxx Xxxxxxxxxx,
Xxxxxxx 00000.
WHEREAS, the Company is a developer and incubator of start-up and
emerging Internet companies and business.
WHEREAS, the Company desires to employ the Executive and the Executive
desires to be employed by the Company: and
NOW THEREFORE, in consideration of the promises, mutual covenants and
agreements contained herein the Company and the Executive do hereby agree as
follows
1. RECITALS. The above recitals are true, correct, and are herein
incorporated by reference.
2. EMPLOYMENT. The Company hereby employs the Executive, and the
Executive hereby accepts employment, upon the terms and conditions hereinafter
set forth.
3. AUTHORITY AND POWER DURING EMPLOYMENT PERIOD.
(a) Duties and Responsibilities. During the Term of this Agreement (as
hereinafter defined), the Executive shall serve as President and Chief Executive
Officer of the Company, and shall have general executive and operating
supervision over the property, business and affairs of the Company, its
subsidiaries and divisions, subject to the guidelines and direction of the Board
of Directors of the Company. It is further the intention of the parties that at
all times during the Term of this Agreement, the Executive shall serve as member
of the Board of Directors of the Company and shall be elected and serve through
the Term of the Agreement as Chairman of the Board of Directors.
(b) Time Devoted. Though out the Term of the Agreement, the Executive
shall devote the necessary time and attention to the business an affairs of the
Company consistent with the Executive's senior executive position with the
Company, except for reasonable vacations and except for illness or incapacity,
but nothing in the Agreement shall preclude the Executive from engaging in
personnel business and/or serving as a member of the Board of Directors of other
related companies, charitable and community affairs, provided that such
activities do not interfere with the regular performance of the Executive's
duties and responsibilities.
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4. TERM. The Term of employment under this Agreement shall commence on
the Commencement Date and shall remain in effect for a period of five (5) years
ending on the date which is five (5) years after the Commencement Date, unless
sooner terminated hereunder as hereinafter provided (the "Employment Period").
The Employment Period shall be automatically renewed for successive one (1) year
periods unless terminated pursuant to Section 6 of this Agreement. Salary as
specified in paragraph 5 (a), herein below, shall accrue from the Commencement
Date.
5. COMPENSATION AND BENEFITS
(a) Salary. The Executive shall be paid a base salary (the "Base
Salary"), payable in the manner and frequency in which the Company's payroll is
customarily handled, at a rate of One Hundred and Fifty Thousand Dollars
($150,000) for the first year with annual incremental increases of the greater
of:
(i) the percentage increase in the Consumer Price Index, all
items, as published by the United States Department of Labor, since the
Effective Time, or
(ii) ten percent (10%) of the previous year's Base Salary.
The Executive's Base Salary may also be adjusted upward for time to
time by the Executive Compensation Committee in their sole discretion, or if no
such committee is in existence by the Board of Directors, as they, in their sole
discretion, deem appropriate; provided, however that the Company may not reduce
the Base Salary after any increase is made.
(b) Bonus Compensation. During the Term of this Agreement, the
Executive shall receive an annual bonus (the "Annual Bonus") from the Company,
in such amount as shall, from time to time, be determined by the Board of
Directors of the Company in its good faith discretion. In addition, the
Executive shall receive a bonus, as determined by the Board of Directors in
their sole discretion, for any and all acquisitions or mergers consummated by
the Company during the Term of this Agreement.
(c) Stock Option Plan. The Executive shall be entitled to participate
in any qualified and non-qualified stock option plans, stock purchase
agreements, or Incentive Stock Options plans of the Company in which he is
eligible to participate pursuant to the terms of such plans. The Executive's
participation in such plan will not obligate the Company to the continued
employment of the Executive. The specific terms and conditions of such plan(s)
approved by the Board of Directors shall govern and control the rights of all
parties hereto.
(d) Executive Benefits. The Executive shall be entitled to participate
in all benefit programs of the Company currently existing or hereafter made
available to executives and/or salaried employees, including, but not limited
to, pension and other retirement plans, group life insurance, hospitalization,
surgical and major medical coverage, sick leave, salary
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continuation, vacation and holidays, cellular telephone and all related costs
and expenses, long-term disability, and other fringe benefits.
(d) Vacation. During each fiscal year of the Company, the Executive
shall be entitled to reasonable time and to utilize such vacation as the
Executive shall determine; provided however, that the Executive shall evidence
reasonable judgment with regard to appropriate vacation scheduling.
(e) Business Expense Reimbursement. During the Term of this Agreement,
the Executive shall be entitled to receive reimbursement for all reasonable,
out-of-pocket expenses incurred by the Executive (in accordance with the
policies and procedures established by the Company for its senior executive
officers) in performing hereunder, provided the Executive properly accounts
therefor in accordance with the Company's internal procedures as may be in
effect from time to time.
(f) Automobile Expenses. During the Term of this Agreement, the Company
shall provide the Executive with an automobile of the Executive's choice, which
such cost shall not exceed One Thousand Dollars ($1,000) per month. The Company
shall also be responsible for all expenses in connection with the automobile
including, but not limited to, maintenance, insurance and gas.
(g) Membership Dues. The Company shall provide the Executive a
membership in a social, charitable or religious organization or club, which
membership shall be either in the name of the Executive or in the name of the
Company, as reasonably determined by the Executive.
(h) Life Insurance. The Company shall pay or reimburse Executive for
premiums and other charges associated with such life insurance policies as
Executive and the Company shall mutually agree.
6. CONSEQUENCES OF TERMINATION OF EMPLOYMENT
(a) Death. In the event of the death of the Executive during the Term
of the Agreement, salary shall be paid to the Executive's designated
beneficiary, or, in the absence of such designation, to the estate or other
legal representative of the Executive for a period of one (1) year for the date
of death. The Company shall also be obligated to pay to Executive's estate or
heirs, as the case may be, such amount of the Annual Bonus for the prior year of
the Term of this Agreement as set forth in Section 5 (b) of this Agreement for
the fiscal year in which the death of the Executive occurred, (ii) divided by
twelve (12); and (ii) then multiplied by the number of months or any portions
thereof the Executive was employed by the Company just prior to the Employees
death. Except as set forth herein, other death benefits will be determined in
accordance with the terms of the Company's benefit programs and plans.
(b) Disability.
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(i) In the event of the Executive's disability, as hereinafter
defined, the Executive shall be entitled to compensation in accordance with the
Company disability compensation practice for senior executives, including any
separate arrangement or policy covering the Executive, but in all events the
Executive shall continue to receive the Executive's Base Salary for a period, at
the annual rate in effect immediately prior to the commencement of disability of
not less that 180 days for the date on which the disability has deemed to occur
as hereinafter provided below. Any amounts provided for in this Section 6 (b)
shall be offset by other long-term disability benefits provided to the Executive
by the Company.
(ii) "Disability", for the purposes of this Agreement, shall
be deemed to have occurred in the event (A) the Executive is unable by reason of
sickness or accident, to perform the Executive's duties under this Agreement for
an aggregate of 180 days in any twelve-moth period, or (B) the Executive has a
guardian of the person or estate appointed by a court of competent jurisdiction.
Termination due to disability shall be deemed to have occurred upon the first
day of the month following the determination of disability as defined in the
preceding sentence.
Anything herein to the contrary notwithstanding, if, following a
termination of employment hereunder due to disability as provided in the
preceding paragraph, the Executive becomes re-employed. whether as an employee
or a consultant to the Company, any salary, annual incentive payments or other
benefits earned by the Executive for such employment shall offset any salary
continuation due to the Executive hereunder commencing with the date of
re-employment.
(c) Termination by The Company For Cause.
(i) Nothing herein shall prevent the Company from terminating
the Executive for "Cause," as hereinafter defined. The Executive shall continue
to receive salary only for the period ending with the date of such termination
as provided in this Section 6 (c). Any rights and benefits the Executive may
have in respect of any other compensation shall be determined in accordance with
the terms of such other compensation arrangements or such plans or programs.
(ii) "Cause" shall mean an include those actions or events
specified below in subsection (A) through (E) to the extent the same occur, or
the events constituting the same take place, subsequent to the date of execution
of this Agreement: (A) the commission by the Executive of theft or embezzlement
of Company property or other acts of dishonesty; (B) committing or participating
in any other injurious act or omission wantonly, willful, recklessly or in a
manner which was grossly negligent against the Company, monetarily or otherwise;
(C) engaging in a criminal enterprise invoking moral turpitude; (D) conviction
of an act or acts constituting a felony under the laws of the United Sates or
any state thereof; or (E) any assignment of this Agreement by the Executive in
violation of Section 14 of this Agreement.
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Anything herein to the contrary notwithstanding, the employment of
Executive shall not be terminable by the Company for Cause if the grounds for
such termination includes, but is not limited to: (i) the result of bad judgment
or poor economic results on the part of the Executive, (ii) any act or omission
believed by the Executive in good faith to have been in or not opposed to the
interests of the Company, or (iii) any act or omission in respect of which a
determination could properly be made that Executive met the applicable standard
of conduct described for indemnification or reimbursement or payment of expenses
under Articles of Incorporation or Bylaws of the Company or the laws of the
State of Florida or the directors' and officers' liability insurance of the
Company, in each case as in effect at the time of such act or omission.
(iii) Notwithstanding anything else contained in this
Agreement, this Agreement will not be deemed to have been terminated for Cause
unless and until there shall have been delivered to the Executive a notice of
termination stating that the Executive committed one of the types of conduct set
forth in this Section 6 (c) contained in this Agreement and specifying the
particulars thereof and the Executive shall be given a thirty (30) day period to
cure such conduct, if possible.
(d) Termination by The Company Other Than for Cause.
(i) The forgoing notwithstanding, the Company may terminate
the Executive's employment for whatever reason it deemed appropriate provided,
however, that in the event such termination is not based on Cause as provided in
Section 6 (c) above, the Company may terminate this Agreement upon giving three
(3) months' prior written notice. During such three (3) month period, the
Executive shall continue to perform the Executive's duties pursuant to this
Agreement, and the Company shall continue to compensate the Executive in
accordance with this Agreement. The Executive will receive, at the Executive's
option either (A) a lump sum equal to the "Compensation and Benefits" as
hereinafter defined for the remaining balance of the Term of this Agreement, at
the then current rate, reduced to present value, as set forth in Section 280G of
the Internal Revenue Code, or (B) for the remaining balance of the Term of this
Agreement for and after the date of any such termination and the Company shall
on the last day of each calendar month pay to the Executive such Compensation
and Benefits, which shall be an amount equal to (Y) one hundred percent (100%)
of the Executive's compensation and benefits set forth in Section 5, which shall
specifically include the then current Base Salary and Annual Bonus for the prior
year of the Term of the Agreement (the "Compensation and Benefits"), on the date
of any such termination, divided by (Z) twelve (12).
(ii) In the event the Executive's employment with the Company
is terminated pursuant to this section 6 (d), Section 6 (f) or Section 6 (g),
Section 7 (a) of this Agreement and all reference thereto shall be inapplicable
as to the Executive and the Company.
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(iii) The foregoing notwithstanding, the Executive's
employment may not be terminated by the Company for any reason other that
pursuant to Section 6 (a), Section 6 (b) and/or Section 6 (c) during the first
(3) years of the Term of this Agreement.
(e) Voluntary Termination. In the event the Executive terminates the
Executive's employment on the Executive's own volition (except as provided in
Section 6 (f) and/or Section 6 (g) ) prior to the expiration of the Term of this
Agreement, including any renewals thereof, such termination shall constitute a
voluntary termination and in such event the Executive shall be limited to the
same rights and benefits as provided in connection with a termination for Cause
as provided in Section 6(c).
(f) Constructive Termination of Employment. If the Executive so elects,
a termination by the Company without Cause under Section 6 (d) shall be deemed
to have occurred upon the occurrence of one or more of the following events
without the express written consent of the Executive:
(i) a significant change in the nature or scope of the
authorities, powers, functions, duties or responsibilities attached to
Executive's position as described in Section 3 or failure of the Executive to be
elected Chairman of the Board of Directors; or
(ii) five percent (5%) reduction in the Executive's Base
Salary or any change in the method of calculating the Annual Bonus hereunder
which would be detrimental to Executive in any respect; or
(iii) a material breach of the Agreement by the Company; or
(iv) a material reduction of the Executive's benefits under
the executive benefits plan, program or arrangement (for Executive individually
or as part of a group) of the Company as then in effect or as in effect on the
Effective Date of the Agreement, which reduction shall not be effectuated for
similarly situated employees of the Company; or
(v) failure by a successor company to assume the obligations
under this Agreement, or
(vi) a change in the Executive principal office to a location
outside the State of Florida.
Anything herein to the contrary notwithstanding, the Executive shall
give written notice to the Board of Directors of the Company that the Executive
believes an event has occurred which would result in a Constructive Termination
of the Executive's employment under this Section 6 (f), which written notice
shall specify the particular act or acts, on the basis of which the Executive
intends to so terminate the Executive 5 employment, and the Company shall then
be given the opportunity, within fifteen (15) days of its receipt of such notice
to cure said event, provided, however, there shall be no time period permitted
to cure a second or subsequent occurrence under this Section 6 (f) (whether such
second
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occurrence be of the same or different event specified in subsections (i)
thorough (v) above.)
(g) Termination Following a Change of Control.
(i) In the event that a "Change in Control" or an "Attempted
Change in Control" as hereinafter defined, of the Company shall occur at any
time during the Term hereof, the Executive shall have the right to terminate the
Executive's employment under this Agreement upon thirty (30) days written notice
given at any time within one (1) year after the occurrence of such event, and
such termination of the Executive's employment with the Company pursuant to this
Section 6 (g) (i), then, in any such event, such termination shall be deemed to
be a Termination by the Company other than for Cause and the Executive shall be
entitled to such Compensation and Benefits as set forth in Subsection 6 (d) of
this Agreement.
(ii) For purposes of this agreement, a "Change in Control" of
the Company shall mean a change in control (A) as set forth in Section 280G of
the Internal Revenue Code or (B) of a nature that would be required to be
reported in response to Item I of a current report on Form 8-K, as in effect on
the date hereof, pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934 (the 'Exchange Act"); provided that, without limitation, such a change
in control shall be deemed to have occurred at such time as:
(A) any "person", other than the Executive, (as such
term is used in Section 13(d) and 14(d) of the Exchange Act) is or becomes the
beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing fifty (50%) or more of the
combined voting power of the Company's outstanding securities then having the
right to vote at elections of directors; or
(B) the individuals who at the commencement date of
the Agreement constitute the Board of Directors cease for any reason to
constitute a majority thereof unless the election, or nomination for election,
of each new director was approved by a vote of at least two thirds of the
directors then in office who were directors at the commencement of the
Agreement; or
(C) there is a failure to elect four or more (or such
number of directors as would constitute a majority of the Board of Directors)
candidates nominated by management of the Company to the Board of Directors; or
(D) the business of the Company for which the
Executive's service are principally performed is disposed of by the Company
pursuant to a partial or complete liquidation of the Company, a sale of assets
(including stock of a subsidiary of the Company) or otherwise.
Anything herein to the contrary notwithstanding, this Section 6 (g)
(ii) will not apply where the Executive gives the Executive's explicit written
wavier stating that for the
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purposes of this Section 6 (g) (ii) a Change in Control shall not be deemed to
have occurred. The Executive's participation in any negotiations or other
matters in relation to Change in Control shall in no way constitute such a
wavier which can only be given by an explicit written wavier as provided in the
proceeding sentence.
An "Attempted Change in Control" shall be deemed to have occurred if
any substantial attempt, accompanied by significant work efforts and
expenditures of money, is made to accomplish a Change in Control, as described
in subparagraphs (A), (B), (C), or (D) above whether or not such attempt is made
with the approval of a majority of the then current members of the Board of
Directors.
(iii) In the event that, within twelve (12) months of any
Change in Control of the Company or any Attempted Change in Control of the
Company, the Company terminates the employment of the Executive under this
Agreement, for any reason other that Cause as defined in Section 6 (c), or the
Executive's employment is constructively terminated as defined in Section 6 (g)
(iv), then, in any such event, such termination shall be deemed to be a
Termination by the Company other than for Cause and the Executive shall be
entitled to such Compensation and Benefits as set forth in Subsection 6(d) of
this Agreement.
(iv) For purpose of this Section 6 (g), the Executive's
employment shall be deemed constructively terminated in the event one or more of
the following events occurs without the express written consent of the
Executive:
(A) Significant change in the nature or scope of the
authorities, powers, functions, duties or responsibilities attached to the
Executive's position as described in Section 3, or the failure of the Executive
to be elected Chairman of the Board of Directors during the Term of this
Agreement; or
(B) A five percent (5%) reduction in the Executive's
Base Salary below the Base Salary in effect immediately prior to such reduction;
or
(C) Material breach of the Agreement by the Company;
or
(D) Material reduction of the Executive's benefits
under any executive benefits plan, program or arrangement (for Executive
individually or as part of a group) of the Company as then in effect or as in
effect on the date of the Agreement, which reduction shall not be effectuated
for similarly situated employees of the Company; or
(E) Failure by a successor company to assume the
obligations under the Agreement, or
(F) Change in the Executive's principal office to a
location outside of the State of Florida.
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(v) Anything in this Section 6 (g) to the contrary
notwithstanding, in no event will any action or non-action by the Executive as
any time prior to the first anniversary date of the applicable Change in Control
or Attempted Change in Control (including any action or non-action prior to the
effective date of this Agreement) be deemed consent to any of the events
described in this Section 6 (g).
(vi) Anything herein to the contrary notwithstanding, in the
event the circumstances giving rise to an Attempted Change in Control are
included in those circumstances giving rise to an actual Change in Control the
twelve (12) month period under this Section 6 will be deemed to have recommenced
on the date the actual Change in Control occurred.
7. Covenant Not to Compete and Non-Disclosure of Information.
(a) Convent Not to Compete. Except as set forth in Section 6 (d) (ii)
of this Agreement, the Executive acknowledges and agree that his employment by
the Company under this Agreement necessarily involves his understanding and
access to confidential information pertaining to the business of the Company.
Accordingly. in consideration of the execution of this Agreement, the Executive
agrees to the following:
(i) That during the Restricted Period (as hereinafter defined)
and within the Restricted Area (as hereinafter defined), the Executive will not,
individually or in conjunction with others, directly or indirectly, engage in
any Business Activities (as hereinafter defined), whether as an as an officer,
director, stockholder, partner, owner, executive, creditor (other than as a
holder solely as an investment of less than 1% of the outstanding capital stock
of a publicly traded corporation), or otherwise.
(ii) That during the Restricted Period and within the
Restricted Area, the Executive will not, directly or indirectly, compete with
the Company by soliciting, inducing or influencing any of the Company's clients
which have a business relationship with the Company at the time during the
Restricted Period to discontinue or reduce the extent of such relationship with
the Company.
(iii) That during the Restricted Period and within the
Restricted Area, the Executive will not (A) directly or indirectly recruit,
solicit or otherwise influence any executive or agent of the Company to
discontinue such employment or agency relationship with the Company, or (B)
employ or seek to employ, or cause or permit any business which competes
directly or indirectly with the Business Activities of the Company (the
"Competitive Business") to employ or seek to employ for any Competitive Business
any person who is then (or was at any time within six (6) months prior to the
date Executive or the Competitive Business employs or seeks to employ such
person) employed by the Company.
(iv) That during the Restricted Period the Executive will not
interfere with, or disrupt or attempt to disrupt any past, present or
prospective relationship, contractual or otherwise, between the Company and any
customer, executive or agent of the Company.
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(b) Non-Disclosure of Information. The Executive acknowledges that the
Company's trade secrets, private or secret processes, methods and ideas, as they
exist for time to time, customer lists and information concerning the Company's
products, services, training methods, developments, technical information,
marketing activities and procedures, credit and financial data concerning the
Company and/or the Company's Clients, and (the '"Proprietary Information") are
valuable, special and unique assets of the Company, access to and knowledge of
which are essential to the performance of the Executive hereunder. In light of
the highly competitive nature of the industry in which the Company's business is
conducted, the Executive agrees the all Proprietary Information, hereto or in
the future obtained by the Executive as result of the Executive's association
with the Company shall be considered confidential.
In recognition of this fact, the Executive agrees that the Executive,
during the Restricted Period, will not use or disclose any of such Proprietary
Information for the Executive's own purposes or for the benefit of any person or
other entity or organization (except the Company) under any circumstances unless
such Propriety Information has been publicly disclosed generally or, unless upon
written advise of legal counsel reasonably satisfactory to the Company. the
Executive is legally required to disclose such Proprietary Information.
Documents (as hereinafter defined) prepared by the Executive or that come into
the Executive's possession during the Executive's association with the Company
are and remain the property of the Company. and when this Agreement terminates.
such Documents shall be returned to the Company at the Company's principal place
of business, as provided in the Notice provision (Section 10) of this Agreement.
(c) Documents. "Documents" shall mean all original written recorded or
graphic matters whatsoever, and any and all copies thereof including, but not
limited to: papers; books; records; tangible things; correspondence;
communications; telex messages; memoranda; work-papers; reports; affidavits;
statements; summaries; analyses; evaluations; client records and information;
agreement; agendas; advertisements; instructions; charges; lists; client lists;
statistical records; training manual; computer printouts; books of account,
records and invoices reflecting business operations; all things similar to any
to the foregoing however denominated. In all cases where originals are not
available, the term "Documents" shall also mean identical copies of original
documents or non-identical copies thereof
(d) Company's Clients. The "Company's Clients" shall be deemed to be
any persons, partnerships corporations, professional associations or other
organizations for whom the Company has performed Business Activities.
(e) Restrictive Period. The 'Restrictive Period" shall be deemed to be
during the Term or Renewal Term of this Agreement and for a period of twelve
(12) months following termination of this Agreement.
(f) Restrictive Area. The Restricted Area shall be deemed to mean any
county of any state in which the Company is providing service at the time of
termination.
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(g) Business Activities. "Business Activities" shall be deemed to
include any business activities concerning consulting, pharmaceutical and
accounting services to nursing homes and assisted living residents provided by
the Company and any additional activities which the Company or any of its
affiliates may engage in during the term of this Agreement
(h) Covenants as Essential Elements of This Agreement. It is understood
by and between the parties hereto that the foregoing covenants contained in
Sections 7 (a) and (b) are essential elements of this Agreement, and that but
not for the agreement by the Executive to comply with such covenants, the
Company would not have agreed to enter into this Agreement. Such covenants by
the Executive shall be construed to be agreements independent of any other
provisions of this Agreement. The existence of any other claim or cause of
provisions of action, whether predicated on any other provision in this
Agreement, or otherwise, as a result of the relationship between the parties
shall not constitute a defense to the enforcement of such covenants against the
Executive.
(i) Survival After Termination of Agreement. Notwithstanding anything
to the contrary contained in this Agreement the covenants in Sections 7 (a) and
(b) shall survive the termination of this Agreement and the Executive's
employment with the Company.
(j) Remedies.
(i) The Executive acknowledges and agrees that the Company's
remedy at law for the breach or threatened breach of any of the provisions of
Section 7 (a) or (b) herein would be inadequate and the breach shall be per se
deemed as causing irreparable harm to the Company. In recognition of this fact
in the even of a breach by the Executive of any of the provisions of Section 7
(a) or (b), the Executive agrees that, in addition to any remedy at law
available to the Company, including, but not limited to monetary damages, all
rights of the Executive to payment or otherwise under this Agreement and all
amounts then to thereafter due to the Executive for the Company under the
Agreement may be terminated and the Company, without posting bond, shall be
entitled to obtain, and the Executive agrees not to oppose the Company's request
for equitable relief in the form of specific performance , temporary restraining
order, temporary or permanent injunction or any other equitable remedy which may
then be available to the Company.
(ii) The Executive acknowledges that the granting of a
temporary injunction, temporary restraining order or permanent injunction merely
prohibiting the use of Proprietary Information would not be an adequate remedy
upon the breach or threatened breach of Section 7 (a) or (b) and consequently
agrees, upon proof of any such breach, to the granting of injunctive relief
prohibiting any form of competition with the Company. Nothing herein contained
shall be construed as prohibiting the Company for pursuing any other remedies
available to it for such breach or threatened breach.
8. Indemnification. The Executive shall continue to be covered by the
Articles of Incorporation and/or Bylaws of the Company with respect to matters
occurring on or prior
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to the date of termination of the Executive's employment with the Company,
subject to all provisions of Florida and Federal law and the Articles of
Incorporation and Bylaws of the Company then in effect. Such reasonable
expenses, including attorneys' fees, that may be covered by the Articles of
Incorporation and/or Bylaws of the Company shall be paid by the Company on a
current basis in accordance with such provision, the Company's Articles of
Incorporation and Florida law.
To the extent that any such payments by the Company pursuant to the
Company Articles of Incorporation and/or Bylaws may be subject to repayment by
the Executive pursuant to the provisions of the Company's Articles of
Incorporation or Bylaws, or pursuant to Florida or Federal law, such repayment
shall be due and payable by the Executive to the Company within twelve (12)
months after termination of all proceedings, if any, which relate to such
repayments and to the Company's affairs for the period prior to the date of
termination of the Executive's employment with the Company and as to which
Executive has been covered by such applicable provisions.
9. Withholding. Anything to the contrary notwithstanding, all payments
required to be made by the Company hereunder to the Executive or the Executive's
estate or beneficiaries shall be subject to the withholding of such amounts, if
any, relating to tax and other payroll deductions as the Company may reasonable
determine it should withhold pursuant to any applicable law or regulation in
lieu of withholding such amounts, the Company may accept other arrangements
pursuant to which it is satisfied that such tax and other payroll obligations
will be satisfied in a manner complying with applicable law or regulation.
10. Notice. Any notice required or permitted to be given under the
terms of this Agreement shall be sufficient if in writing and sent postage
prepaid by registered or certified mail, return receipt requested; by overnight
delivery; by courier; or by confirmed telecopy, in the case of the Executive to
the Executive's last place of business or residence as shown on the records of
the Company, or in the case of the Company to its principal office set forth in
the first paragraph of this Agreement, or at such other place as it may
designate.
11. Wavier. Unless agreed in writing, the failure of either party, at
any time, to require performance by the other of any provisions hereunder shall
not effect its right thereafter to enforce the same, nor shall a wavier by
either party of any breach of any provision hereof be taken or held to be a
wavier of any other preceding or succeeding breach of any term or provision of
this Agreement. No extension of time for the performance of and obligation or
act shall be deemed to be an extension of time for the performance of any other
obligation or act hereunder
12. Completeness and Modification. This Agreement constitutes the
entire understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the Employment Agreement. This Agreement may be amended, modified, superseded or
canceled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived,
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only by written instrument executed by the parties or, in the case of a waiver,
by the party to be charged.
13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one agreement.
14. Binding Effect/Assignment. This Agreement shall be binding upon the
parties hereof their heirs, legal representatives, successors and assigns. This
Agreement shall not be assignable by the Executive but shall be assignable by
the Company in connection with the sale, transfer or other disposition of its
business or to any of the Company affiliates controlled by or under common
control with the Company.
15. Governing Law. This Agreement shall become valid when executed and
accepted by the Company. The parties agree that it shall be deemed made and
enter into in the State of Florida and shall be governed and construed under and
in accordance with the laws of the State of Florida. Anything in this Agreement
to the contrary notwithstanding, the Executive shall conduct the Executive's
business in a lawful manner and faithfully comply with applicable laws or
regulations of the state, city or other political subdivision in which the
Executive is located
16. Further Assurances. All parties hereto shall execute and deliver
such other instruments and do such other acts as may be necessary to carry out
the intent and purposes of this Agreement.
17. Headings. The heading of the sections are for convenience only and
shall not control or affect the meaning or construction or limit the scope or
intent of any of the provisions of this Agreement.
18. Survival. Any termination of this Agreement shall not, however,
affect the ongoing provisions of this Agreement which shall survive such
termination in accordance with their terms.
19. Severability. The invalidity or unenforceability, in whole or in
part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase or word or of any provision of this
Agreement shall not affect the validity or enforceability of the remaining
portions thereof
20. Enforcement. Should it become necessary for any party to institute
legal action to enforce the terms and conditions of this Agreement, the
successful party will be awarded reasonable attorney's fees at all trial and
appellate levels, expenses and costs.
2l. Venue. The Company and Executive acknowledge and agree that the
U.S. Court for the Southern District of Florida, shall be the venue and
exclusive proper forum in which to adjudicate any case or controversy arising
either, directly or indirectly, under or in connection with this Agreement and
the parties further agree that, in the event of litigation
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arising out of or in connection with this Agreement in these courts, they will
not contest or challenge the jurisdiction or venue of these courts.
22. Construction. This Agreement shall be construed within the fair
meaning of each of its terms and not against the party drafting the document.
23. INDEPENDENT LEGAL COUNSEL. The parties have either (i) been
represented by independent legal counsel in connection with the negotiation and
execution of this t Agreement, or (ii) each has had the opportunity to obtain
independent legal counsel, has been advised that it is in their best interests
to do so, and by execution of this Agreement has waived such right.
THE EXECUTIVE ACKNOWLEDGES THAT THE EXECUTIVE HAS READ ALL OF THE TERMS
OF THIS AGREEMENT, UNDERSTANDS THE AGREEMENT, AND AGREES TO ABIDE BY ITS TERMS
AND CONDITIONS.
IN WITNESS WHEREOF, the parties have executed this Agreement as of date
set forth in the fist paragraph of this Agreement.
TECHLABS, INC.
By: /S/ Xxxxx X. Xxxxxxx
----------------------------
Xxxxx X. Xxxxxxx,
Executive Vice President
THE EXECUTIVE:
/S/ Xxxxxx X. Xxxxx
---------------------
Xxxxxx X. Xxxxx
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