EXHIBIT 10.5
EXECUTION COPY
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT (this "Agreement"), dated as of the 3rd day of June
2004 ("Effective Date"), by and among Cyber-Test, Inc., a newly formed Delaware
corporation ("Cyber-Test"), Encompass Group, Inc., a Delaware corporation
("Encompass"), Advanced Communication Technologies, Inc., a Florida Corporation
("ACT"), and Xxxx Xxxxxx, an individual whose address is 000 Xxxxxx Xxxxxxx
Xxxxx, Xxxxxx, Xxxxxxx 00000 ("Executive"). Cyber-Test, Encompass and ACT shall
be referred to collectively herein as the "Company."
WITNESSETH
WHEREAS, Executive presently serves as President of Cyber-Test, Inc., a
Florida corporation ("Cyber-Test Florida");
WHEREAS, Cyber-Test, a newly formed subsidiary of Encompass, has entered
into an Asset Purchase Agreement (the "Asset Purchase Agreement") with
Cyber-Test Florida, pursuant to which Cyber-Test will buy substantially all of
the assets of Cyber-Test Florida (the "Acquisition"); and
WHEREAS, it is a condition of the Acquisition that Executive accept
employment with the Company as of the consummation of the Acquisition.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. EMPLOYMENT.
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1.1 Encompass. Encompass hereby employs Executive, and Executive
accepts employment with Encompass, as Executive Vice President, or such other
executive position with similar responsibilities and duties of an executive vice
president of a company.
1.2 Cyber-Test. Cyber-Test hereby employs Executive, and Executive
hereby accepts employment with Cyber-Test, as President and Chief Executive
Officer, or such other senior executive position as may be determined by the
Board of Directors of ACT (the "Board") from time to time during the Employment
Period (as defined below). For purposes of this Agreement, "senior executive
position" shall mean a position of Vice President or a more senior position. In
addition to her duties set forth in this Paragraph 1 and Paragraph 3 below,
Executive shall at the request of the Encompass CEO (as defined below) or the
Board consider serving as an officer or director of ACT, or any subsidiary of
ACT, without additional compensation and subject to any policy of the
Compensation Committee of the Board (the "Compensation Committee") with regard
to directors' fees.
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2. TERM.
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2.1 Initial Term; Renewal. The initial term of this Agreement shall
commence on the Effective Date and expire on the third anniversary thereof (the
"Employment Period"), unless earlier terminated in accordance with its terms.
Unless earlier terminated in accordance herewith, this Agreement shall be deemed
to have been extended for additional terms of successive one year periods
commencing on the day of the expiration of the then current Employment Period.
2.2 Earn-Out Shares. Executive hereby acknowledges that a portion of
the purchase price paid by Cyber-Test to Cyber-Test consists of 50,000,000
shares of ACT's common stock to be earned by Cyber-Test pro-rata each year
during the Employment Period in accordance with the terms and conditions of the
Asset Purchase Agreement (the "Earn-Out Shares"). Executive hereby further
acknowledges that in the event Executive's employment with the Company is
terminated, for any reason, other than (i) by the Company without "cause" (as
defined in Section 6.1 hereof) or (ii) due to Executive's death or disability in
accordance with Section 7 hereof, prior to the expiration of the Employment
Period, the Earn-Out Shares shall be forfeited by Cyber-Test in their entirety,
and the Company shall have no further obligations to Cyber-Test with respect to
the Earn-Out Shares; provided, however, that in the event Executive's employment
with the Company is terminated (i) by the Company without "cause" or (ii) due to
Executive's death or disability prior to the expiration of the Employment
Period, Cyber-Test shall be permitted to retain only those Earn-Out Shares
previously earned by Cyber-Test and placed in escrow up to and including the
fiscal year of the Company immediately preceding the year of termination of
Executive's employment with the Company. In no event shall Cyber-Test have the
right to receive any Earn-Out Shares for the fiscal year during, or any fiscal
year after, which Executive's employment with the Company is terminated due to
Executive's death or disability prior to the expiration of the Employment
Period.
3. EMPLOYMENT AND DUTIES.
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3.1 Duties and Responsibilities.
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(a) Executive's area of responsibility during the Employment
Period shall be that of Executive Vice President of Encompass and President and
Chief Executive Officer of Cyber-Test. Executive shall directly report to the
Chief Executive Officer of Encompass (the "Encompass CEO"), or such other senior
executive officer of Encompass or ACT, as determined from time to time by the
Company. The services to be rendered by Executive pursuant to this Agreement
shall consist of such services as defined and directed by the Board or the
Encompass CEO.
(b) During the Employment Period, Executive shall serve
Cyber-Test and Encompass faithfully and to the best of her ability; shall devote
her entire working time, attention, energy and skill to her employment and the
benefit and business of these entities; and shall use her best efforts, skills
and ability to promote their interests and to perform such duties as from time
to time may be reasonably assigned to her and are consistent with her titles and
positions with these entities.
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(c) During the Employment Period, in addition to any other
duties or responsibilities Encompass or Cyber-Test may give to Executive,
Executive shall be required to sign, and shall sign, all certifications and such
other documents or instruments requested by the Board, the Chief Executive
Officer of ACT, or the Encompass CEO in connection with ACT's obligations under
or to (i) the Securities and Exchange Commission, (ii) any exchange or
association on which the Company's shares of capital stock are listed, (iii) any
federal, state or local authority, and/or (iv) any other governmental,
quasi-governmental or non-governmental entity or organization (foreign or
domestic) that regulates or has authority over ACT. In addition, in the event
Executive, in her current position or in any position Executive accepts in the
future, becomes obligated to sign certifications and such other documents or
instruments as may be required by the rules and regulations promulgated by any
of (i) through (iv) above, Executive shall sign all such certifications and
other documents or instruments as required thereby.
3.2 Observance of Rules and Regulations. Executive agrees to observe
and comply with all applicable laws and regulations, as well as the rules and
regulations of Encompass and Cyber-Test with respect to the performance of her
duties.
4. COMPENSATION; BENEFITS AND EXPENSES.
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4.1 Base Salary. As compensation for the services to be rendered
hereunder, during the Employment Period, Cyber-Test shall pay to Executive an
annual base salary (the "Base Salary") of $120,000.00. The Base Salary shall be
payable in accordance with usual payroll practices of Cyber-Test. Executive's
Base Salary shall be reviewed annually by the Compensation Committee during the
Employment Period and may be increased, but not decreased, from time to time by
the Compensation Committee in its sole discretion.
4.2 Bonus.
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(a) Immediately following each fiscal year, the Company shall
set aside for the payment of Encompass executive bonuses, an amount equal to
five percent (5%) of net income of Encompass during such fiscal year (the
"Encompass Bonus Pool"). For each fiscal year or portion thereof after the
Effective Date and during the Employment Period, the Company shall pay to
Executive an annual performance bonus, in cash and/or restricted stock of ACT,
equal to a portion of the Encompass Bonus Pool, as determined by the
Compensation Committee, in its sole discretion, taking into account Executive's
contribution to Encompass' overall performance during such fiscal year (the
"Encompass Performance Bonus").
For purposes hereof, "net income" shall mean, with respect to Encompass, for any
fiscal year, the net income (loss) of Encompass for such fiscal year, determined
on a consolidated basis in accordance with generally accepted accounting
principals, consistently applied; provided, however, that there shall be
excluded from net income (a) the net income (loss) of any person in which
Encompass has a joint interest with a third party, except to the extent such net
income is actually paid to Encompass by dividend or other distribution during
such fiscal year, (b) the net income (or loss) of any person accrued prior to
the date it becomes a subsidiary of Encompass or is merged into or becomes
consolidated with Encompass or its assets are purchased by Encompass, and (c)
the net income (if positive) of any subsidiary of Encompass to the extent that
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the declaration or payment of dividends or similar distributions of such net
income by such subsidiary (i) is not at that time permitted by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order
statute, rule or governmental regulation or (ii) would be subject to any taxes
payable on such dividends or distributions.
(b) Immediately following each fiscal year, the Company shall
set aside for the payment of Cyber-Test executive bonuses, an amount equal to
ten percent (10%) of net income of Cyber-Test during such fiscal year (the
"Cyber-Test Bonus Pool"). For each fiscal year or portion thereof after the
Effective Date and during the Employment Period, the Company shall pay to
Executive an annual performance bonus, in cash and/or restricted stock of ACT,
equal to a portion of the Cyber-Test Bonus Pool, as determined by the
Compensation Committee, in its sole discretion (the "Cyber-Test Performance
Bonus" and together with the Encompass Performance Bonus, the "Performance
Bonuses").
For purposes hereof, "net income" shall mean, with respect to Cyber-Test, for
any fiscal year, the net income (loss) of Cyber-Test for such fiscal year,
determined in accordance with generally accepted accounting principals,
consistently applied; provided, however, that there shall be excluded from net
income (a) the net income (loss) of any person in which Cyber-Test has a joint
interest with a third party, except to the extent such net income is actually
paid to Cyber-Test by dividend or other distribution during such fiscal year,
(b) the net income (or loss) of any person accrued prior to the date it becomes
a subsidiary of Cyber-Test or is merged into or becomes consolidated with
Cyber-Test or its assets are purchased by Cyber-Test, and (c) the net income (if
positive) of any subsidiary of Cyber-Test to the extent that the declaration or
payment of dividends or similar distributions of such net income by such
subsidiary (i) is not at that time permitted by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order statute, rule or
governmental regulation or (ii) would be subject to any taxes payable on such
dividends or distributions.
(c) In addition to the Performance Bonuses, the Company may
grant restricted shares of common stock of ACT to Executive, with a vesting
schedule and other terms established by the Compensation Committee, in its sole
discretion (the "Incentive Bonus").
(d) Executive acknowledges that the amount of the Performance
Bonuses and the amount of the Incentive Bonus shall at all times be determined
by the Compensation Committee, in its sole discretion. The Company shall pay
each of the Performance Bonuses and the Incentive Bonus to Executive within
thirty (30) days after the Company's audited results for the applicable fiscal
year are delivered to the Company, but in no event later than September 30 of
the immediately following fiscal year.
4.3 Other Benefits. Executive shall also be eligible to participate
in any life and health insurance programs that the Company makes available to
all of its executives of similar seniority. Executive shall also be eligible to
receive discretionary performance based bonuses as approved and authorized by
the Compensation Committee, including any incentive stock programs approved by
ACT's shareholders.
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4.4 Business Expenses. Executive will be reimbursed, in accordance
with the Company's expense reimbursement policy, for business expenses that have
been pre-approved by the Board or the Encompass CEO upon presentation of
vouchers or other documents reasonably necessary to verify the expenditures and
sufficient, in form and substance, to satisfy Internal Revenue Service
requirements for such expenses.
4.5 Vacation. Executive shall be entitled to take up to four (4)
weeks of vacation per calendar year, which shall be taken in accordance with the
Company's vacation policy in effect from time to time for executives of
comparable seniority.
5. NO COMPETITIVE ACTIVITIES; CONFIDENTIALITY; INVENTION
5.1 General Restriction. During the Employment Period and for a
period of two (2) years thereafter (the "Restricted Period"), Executive
covenants and agrees that, except on behalf of the Company, she will not,
directly or indirectly:
(a) Competing Business. Own, manage, operate, control,
participate in the ownership, management, operation or control of, be employed
by, or provide services as a consultant to, any individual or business that is
involved in business activities that are the same as, similar to or in
competition with, directly or indirectly, any business activities conducted, or
actively being planned, by the Company during the Restricted Period and anywhere
in the United States and Canada (it being acknowledged that the Company's
business is national in scope). The ownership of less than one percent (1%) of
the outstanding stock of any public corporation shall not be deemed a violation
of this provision.
(b) Soliciting Customers. Attempt in any manner to contact or
solicit any individual, firm, corporation or other entity (i) that is or has
been, a customer of the Company at any time during the Restricted Period, (ii)
to which a proposal has been made by the Company during the Restricted Period or
(iii) appearing on the Company's new business target list on the date of
Executive's termination (as such list has been prepared and maintained in
accordance with the Company's past practice), for the purpose of providing
services or products similar to the services and products provided by the
Company, or engaging in any activity which could be, directly or indirectly,
competitive with the business of the Company.
(c) Interfering with Other Relations. Persuade or attempt to
persuade any supplier, vendor, licensor or other entity or individual doing
business with the Company to discontinue or reduce its business with the Company
or otherwise interfere in any way with the business relationships and activities
of the Company.
(d) Employees. Attempt in any manner to solicit any individual,
who is at the time of such attempted solicitation, or was at any time during the
one (1) year period preceding the termination of Executive's employment, an
employee or consultant of the Company, to terminate his or her employment or
relationship with the Company, or engage such individual, as an employee or
consultant. Cooperate with any other person in persuading, enticing or aiding,
or attempting to persuade, entice or aid, any employee of or consultant to the
Company to terminate his or her employment or business relationship with the
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Company, or to become employed as an employee or retained as a consultant by any
person other than the Company.
5.2 Confidentiality Agreement. Executive shall not, either during the
Employment Period or at any time thereafter, use or disclose to any third person
any Confidential Information (as defined below) of the Company, other than at
the direction of the Company, or pursuant to a court order or subpoena, provided
that Executive will give notice of such court order or subpoena to the Company
prior to such disclosure. Upon the termination of Executive's employment with
the Company for any reason, Executive shall return any notes, records, charts,
formulae or other materials (whether in hard copy or computer readable form)
containing Confidential Information, and will not make or retain any copies of
such materials. Without limiting the generality of the foregoing, the parties
acknowledge that the Company from time to time may be subject to agreements with
its customers, suppliers or licensors to maintain the confidence of such other
persons' confidential information. The terms of such agreements may require that
the Company's employees, including Executive, be bound by such agreements, and
Executive shall be deemed so bound upon notice to her of the terms of such
agreements. The term "Confidential Information" as used herein shall mean any
confidential or proprietary information of the Company whether of a technical,
engineering, operational, financial or economic nature, including, without
limitation, all prices, discounts, terms and conditions of sale, trade secrets,
know-how, customers, inventions, business affairs or practices, systems,
products, product specifications, designs, plans, manufacturing and other
processes, data, ideas, details and other information of the Company.
Confidential Information shall not include information which can be proven by
Executive to have been developed by her own work as of the Effective Date
completely independent of its disclosure by the Company or which is in the
public domain, provided such information did not become available to the general
public as a result of Executive's breach of this Paragraph 5.2.
5.3 Disclosure of Innovations. Executive shall make prompt and full
written disclosure to the Company and solely the Company of all writings,
inventions, processes, methods, plans, developments, improvements, procedures,
techniques and other innovations of any kind that Executive may make, develop or
reduce to practice, alone or jointly with others, at any time during the
Employment Period and for a period of one (1) year thereafter, whether during
working hours or at any other time and whether at the request or upon the
suggestion of the Company or otherwise, and whether or not they are eligible for
patent, copyright, trademark, trade secret or other legal protection
(collectively, "Innovations"). Examples of Innovations shall include, but are
not limited to, discoveries, research, formulas, tools, know-how, marketing
plans, new product plans, production processes, advertising, packaging and
marketing techniques and improvements to computer hardware or software. The
written disclosures provided for herein shall be made to the Encompass CEO or
the Board.
5.4 Assignment of Ownership of Innovations. All Innovations shall be
the sole and exclusive property of the Company. Executive hereby assigns all
rights, title or interest in and to the Innovations to the Company. At the
Company's request and expense, during the Employment Period and at any time
thereafter, Executive will assist and cooperate with the Company in all respects
and will execute documents and give testimony to obtain, maintain, perfect and
enforce for the Company any and all patent, copyright, trademark, trade secret
and other legal protections for the Innovations.
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5.5 Remedies. Executive acknowledges that the restrictions contained
in the foregoing paragraphs 5.1 through 5.4, in view of the nature of the
business in which the Company is engaged, are reasonable and necessary in order
to protect the legitimate interests of the Company, and that the legal remedies
for a breach of any of the provisions of this section 5 will be inadequate and
that such provisions may be enforced by restraining order, injunction, specific
performance or other equitable relief. Such equitable remedies shall be
cumulative and in addition to any other remedies which the injured party or
parties may have under applicable law, equity, this Agreement or otherwise.
Executive shall not, in any action or proceeding to enforce any of the
provisions of this Paragraph 5, assert the claim or defense that an adequate
remedy at law exists. The prevailing party shall be entitled to recover its
legal fees and expenses in any action or proceeding for breach of this section
5.
5.6 Company Property. All Confidential Information; all Innovations;
and all correspondence, files, documents, advertising, sales, manufacturers' and
other materials or articles or other information of any kind, in any media, form
or format furnished to Executive by the Company, which may not deemed
confidential, shall be and remain the sole property of the Company ("Company
Property"). Upon termination or at the Company's request, whichever is earlier,
Executive shall immediately deliver to the Company all such Company Property.
5.7 Public Policy/Severability. The parties do not wish to impose any
undue or unnecessary hardship upon Executive following her departure from the
Company's employment. The parties have attempted to limit the provisions of this
section 5 to achieve such a result, and the parties expressly intend that all
provisions of this section 5 be construed to achieve such result. If, contrary
to the effort and intent of the parties, any covenant or other obligation
contained in this section 5 shall be found not to be reasonably necessary for
the protection of the Company, to be unreasonable as to duration, scope or
nature of restrictions, or to impose an undue hardship on Executive, then it is
the desire of the parties that such covenant or obligation not be rendered
invalid thereby, but rather that the duration, scope or nature of the
restrictions be deemed reduced or modified, with retroactive effect, to render
such covenant or obligation reasonable, valid and enforceable. The parties
further agree that in the event a court, despite the efforts and intent of the
parties, declares any portion of the covenants or obligations in this section 5
invalid, the remaining provisions of this section 5 shall nonetheless remain
valid and enforceable.
6. TERMINATION.
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6.1 Termination For Cause. Notwithstanding anything to the contrary
contained herein, this Agreement may be terminated immediately for "cause," at
which time the Company shall have no further obligations or liabilities to
Executive whether under this Agreement or otherwise and Executive's right to
further compensation and benefits hereunder (included, but not limited to,
unvested stock) shall immediately cease, other than payment to Executive of Base
Salary accrued, and reimbursement of expenses incurred in accordance with
Paragraph 4.4, prior to the effective date of termination of this Agreement (the
"Termination Date"). As used herein and throughout this Agreement, the term
"cause" shall mean (i) any act or omission by Executive that constitutes
malfeasance or misfeasance in the course of Executive's duties hereunder, or in
the objectively reasonable judgment of the Board or the Encompass CEO, Executive
has been grossly negligent (including habitual neglect of duties), incompetent
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or insubordinate in carrying out her duties hereunder, (ii) a material breach of
this Agreement that is not cured within ten (10) days of receipt of notice
thereof, (iii) Executive's breach of a fiduciary duty owed to the Company or its
affiliates, or (iv) Executive's conviction of, or pleading nolo contendere to, a
criminal offense or crime constituting a misdemeanor or felony, or conviction in
respect to any act involving fraud, dishonesty or moral turpitude (other than
minor traffic infractions or similar minor offenses).
6.2 Termination without Cause.
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(a) Without Cause. This Agreement may be terminated by the
Company without cause and for any reason or no reason prior to the expiration of
the Employment Period upon thirty (30) days' prior written notice from the
Company to the Executive.
(b) Severance. In the event that the Company terminates
Executive's employment without cause, the Company shall pay to Executive (i)
Base Salary accrued, and expenses incurred in accordance with Paragraph 4.4,
prior to the Termination Date, (ii) any unpaid bonus owed to Executive for a
prior fiscal year ((i) and (ii) together, the "Accrued Payments"), which Accrued
Payments shall be paid to Executive in accordance with Section 4.1, Section 4.2
and Section 4.4, as applicable, and (iii) an additional amount of Base Salary
which would have been payable to Executive during the six (6) month period
immediately following the Termination Date (the "Severance Payment"), which
Severance Payment shall be payable in cash to Executive in equal monthly
installments on the first business day of each calendar month during the six (6)
month period immediately following the Termination Date. Except as provided in
the preceding sentence, the Company shall have no further obligations or
liabilities to Executive whether under this Agreement or otherwise and
Executive's right to further compensation and benefits hereunder (included, but
not limited to, unvested stock) shall immediately cease.
6.3 Termination of Other Positions. Upon the Termination Date,
Executive hereby resigns as Executive Vice President of Encompass, President and
Chief Executive Officer of Cyber-Test and any and all other positions as officer
or director Executive may then hold with the Company, and as fiduciary of any
benefit plan of the Company. Executive shall promptly execute any further
documentation as requested by the Company and, if Executive is to receive any
payments from the Company, execution of such further documentation shall be a
condition thereof.
7. DISABILITY OR DEATH.
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7.1 Disability. If, during the Employment Period, Executive becomes
disabled or incapacitated as determined under the Company's Long Term Disability
Policy ("Permanently Disabled"), the Company shall have the right at any time
thereafter (but in no event less than 120 days after the event causing such
disability or incapacity), so long as Executive is then still Permanently
Disabled, to terminate this Agreement upon thirty (30) days' prior written
notice to Executive. In the event the Company does not have a Long Term
Disability Policy at the time of the event causing the Executive to become
Permanently Disabled, "Permanently Disabled" shall mean Executive's inability to
fully perform her duties and responsibilities hereunder to the full extent
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required by the Company by reason of illness, injury or incapacity for 120
consecutive days or for more than six (6) months during any twelve (12) month
period. If the Company elects to terminate this Agreement in the event that
Executive becomes Permanently Disabled, the Company shall have no further
obligations or liabilities to Executive, whether under this Agreement or
otherwise (included, but not limited to, unvested stock), other than payment to
Executive of the Accrued Payments, which Accrued Payments shall be paid to
Executive in accordance with Section 4.1, Section 4.2 and Section 4.4, as
applicable.
7.2 Death. If Executive dies during the Employment Period, this
Agreement shall automatically terminate as of the date of Executive's death, and
the Company shall have no further obligations or liabilities to Executive,
whether under this Agreement or otherwise (included, but not limited to,
unvested stock), other than payment to Executive's estate of the Accrued
Payments, which Accrued Payments shall be paid to Executive in accordance with
Section 4.1, Section 4.2 and Section 4.4, as applicable.
8. INDEMNIFICATION. Each of the Company and Executive shall indemnify the
other for any losses, damages, liabilities, judgments, claims, costs, penalties
and expenses incurred by such other party (including, without limitation, costs
and reasonable attorneys' fees and costs), resulting from the indemnifying
party's failure to perform any of their obligations contained in this Agreement.
9. GOVERNING LAW. This Agreement shall be governed by the internal laws
of the State of Florida. Any action to enforce any term hereof shall be brought
exclusively within the state or federal courts of Florida to which jurisdiction
and venue all parties hereby submit themselves.
10. BINDING EFFECT. Except as otherwise herein expressly provided, this
Agreement shall be binding upon, and shall inure to the benefit of the parties
hereto, their respective heirs, legal representatives, successors and assigns.
11. ASSIGNMENT. Any assignee of the Company shall have the right to
enforce the restrictive covenants set forth in this Agreement, and the Company
shall have the right to assign this Agreement, including the right to enforce
such covenants to any successor or assign of the Company.
12. NOTICES. All notices, designations, consents, offers, acceptances,
waivers or any other communication provided for herein, or required hereunder,
shall be sufficient if in writing and if sent by registered or certified mail,
return receipt requested, overnight courier, or delivered by hand or confirmed
facsimile transmission to (i) Executive at her last known address on the books
of the Company or (ii) the Company at its principal place of business.
13. ADDITIONAL DOCUMENTS. Each of the parties hereto agrees to execute and
deliver, without cost or expense to any other party, any and all such further
instruments or documents and to take any and all such further action reasonably
requested by such other of the parties hereto as may be necessary or convenient
in order to effectuate this Agreement and the intents and purposes thereof.
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14. COUNTERPARTS. This Agreement may be executed simultaneously in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, and such counterparts may
be delivered by facsimile transmission, which facsimile copies shall be deemed
originals.
15. ENTIRE AGREEMENT. This Agreement contains the sole and entire
agreement and understanding of the parties and supersedes any and all prior
agreements, discussions, negotiations, commitments and understandings among the
parties hereto with respect to the subject matter hereof, including, without
limitation, that certain Letter of Intent, dated May 3, 2004, by and among
Executive, the Company and the other parties named therein. There are no
representations, agreements, arrangements or understandings, oral or written,
between or among the parties concerning the subject matter hereto, which are not
fully expressed herein or in any supplemental written agreements of even or
subsequent date hereof.
16. SEVERABILITY. If any provision of this Agreement, or the application
thereof to any person or circumstances, shall, for any reason and to any extent,
be invalid or unenforceable, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby, but rather shall be enforced to the greatest extent permitted by law.
17. MODIFICATION. This Agreement cannot be changed, modified or discharged
orally, but only if consented to in writing by both parties.
18. CONTRACT HEADINGS. All headings of the Paragraphs of this Agreement
have been inserted for convenience of reference only, are not to be considered a
part of this Agreement, and shall in no way affect the interpretation of any of
the provisions of this Agreement.
19. WAIVER. Failure to insist upon strict compliance with any of the
terms, covenants, or conditions hereof shall not be deemed a waiver of such
term, covenant, or condition, nor shall any waiver or relinquishment of any
right or power hereunder at any one time or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
20. REPRESENTATION OF EXECUTIVE. Executive, with the full knowledge that
the Company is relying thereon, represents and warrants that she has not made
any commitment inconsistent with the provisions hereof and that she is not under
any disability which would prevent her from entering into this Agreement and
performing all of her obligations hereunder.
21. JOINT PARTICIPATION IN DRAFTING. Each party to this Agreement
participated in the drafting of this Agreement. As such, the language used
herein shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction shall be applied
against any party to this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
CYBER-TEST, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President
ENCOMPASS GROUP AFFILIATES, INC., a
Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President
ADVANCED COMMUNICATIONS
TECHNOLOGIES, INC., a Florida corporation
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President and Chief
Executive Officer
EXECUTIVE:
/s/ Xxxx Xxxxxx
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XXXX XXXXXX
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