AMENDED EMPLOYMENT AGREEMENT
----------------------------
AMENDED EMPLOYMENT AGREEMENT (this "Agreement"), dated as of the 1st day
of June, 2005 ("Effective Date"), by and among Encompass Group Affiliates, Inc.,
a Delaware corporation ("Encompass"), Advanced Communication Technologies, Inc.,
a Florida Corporation ("ACT"), and Xxxxxx Xxxxxxx, an individual whose address
is 00000 Xxxxxxx Xxxxx, Xxx Xxxxx Xxxxx, XX ("Executive"). Encompass and ACT,
together with any and all of their respective subsidiaries, shall be referred to
collectively herein as the "Company." This Amended Employment Agreement amends
and replaces the Employment Agreement ("Original Agreement") between Executive
and the Company dated as of June 24, 2004 ("Original Effective Date").
WITNESSETH
WHEREAS, on December 30, 2004, ACT acquired a majority of the outstanding
common stock of Pacific Magtron International Corp. ("PMIC").
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.
(a) Encompass hereby employs Executive, and Executive accepts
employment with Encompass, as Chief Executive Officer, or such other executive
position with similar responsibilities and duties of a chief executive officer
of a company.
(b) ACT hereby employs Executive, and Executive hereby accepts
employment with ACT, as Senior Vice President, or such other executive position
with similar responsibilities and duties of a senior vice president of a company
as may be determined by the Board of Directors of ACT (the "Board") from time to
time during the Employment Period (as defined below).
(c) Executive is currently a member of the Board.
(d) In addition to his duties set forth in this Paragraph 1 and in
Paragraph 3 below, Executive shall at the request of the ACT CEO (as defined
below) or the Board serve as an officer or director of 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.
2. Term. The initial term of this Agreement commenced on the Original
Effective Date and will expire on the second anniversary thereof (the "Initial
Employment Period"), unless earlier terminated in accordance with its terms;
provided, however, that the Company shall have the option of retaining the
services of Executive, on the terms set forth in this Agreement, for an
additional one-year period by providing Executive with written notice thereof
not less than thirty (30) days prior to the expiration of the Initial Employment
Period (the "Option Period" and together with the Initial Employment Period, the
"Employment Period"). Unless earlier terminated in accordance herewith, upon
expiration of the Option Period, this Agreement shall be deemed to have been
extended for additional terms of successive one year periods commencing on the
day after the expiration of the then current Employment Period.
3. Employment and Duties.
3.1 Duties and Responsibilities.
(a) Executive's area of responsibility during the Employment Period
shall be that of Chief Executive Officer of Encompass and such senior executive
position of ACT to which the Board might appoint him. Executive shall directly
report to the Chief Executive Officer of ACT (the "ACT CEO"), or such other
senior executive officer of 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 ACT CEO.
(b) During the Employment Period, Executive shall serve the Company
faithfully and to the best of his ability; shall devote his entire working time,
attention, energy and skill to his employment and the benefit and business of
the Company; and shall use his best efforts, skills and ability to promote its
interests and to perform such duties as from time to time may be reasonably
assigned to him and are consistent with his titles and positions with the
Company.
(c) During the Employment Period, in addition to any other duties or
responsibilities the Company gives to Executive, Executive shall be required to
sign, and shall sign, all certifications and such other documents or instruments
required of an executive of a public company or otherwise by (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,
(iv) any other governmental, quasi-governmental or non-governmental entity or
organization (foreign or domestic) that regulates or has authority over the
Company, and/or (v) the Company in connection with any of the foregoing.
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 the Company, with respect to the performance of his duties.
3.3 Resignation from Other Positions. Executive has resigned from
any and all other positions he may hold as an officer or director with any other
company prior to the Original Effective Date, other than the Company; provided,
however, that notwithstanding the foregoing, Executive shall be permitted to
remain as (i) an outside director, but not as Chairman, of Hy-Tech Technology
Group, Inc. and Emerging Delta Corp., and (ii) Chairman of Altos Bancorp, Inc.
("Altos") for so long as Altos remains a privately held company that is not
required to file periodic and other reports pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended.
2
4. Compensation; Benefits and Expenses.
4.1 Acquisition Bonuses.
(a) Upon execution of the Original Agreement, ACT granted to
Executive, and Executive shall receive, 50,000,000 shares of ACT's restricted
common stock, priced at $.01 per share, of which (i) 12,500,000 shares will
fully vest on July 1, 2005, and (ii) 37,500,000 shares will fully vest on July
1, 2006 (together, the "ACT Shares"); provided, as to each vesting traunch, that
Executive is then employed by the Company; and provided further that the number
of ACT Shares shall be adjusted accordingly for stock splits, reverse stock
splits and other recapitalizations effected by ACT. Notwithstanding the
foregoing, in the event Executive's employment with the Company is terminated by
the Company without "cause" prior to the expiration of the Initial Employment
Period, a pro-rata amount of otherwise unvested ACT Shares, based on the number
of days elapsed during the applicable fiscal year, shall become fully vested and
payable by the Company.
(b) Within five (5) business days after the consummation of the
transaction contemplated by that certain Agreement, dated May 27, 2004, by and
among Encompass and HYTT, Encompass paid to Executive $15,000 in cash.
(c) Within five (5) business days after the later to occur of (i)
the consummation of the acquisition of a majority of the outstanding stock of
Pacific Magtron International Corp., Encompass paid to Executive $15,000 in
cash.
4.2 Base Salary.
(a) As compensation for the services to be rendered hereunder,
during agreement year ending on June 23, 2005, Encompass shall pay to Executive
an annual base salary (the "Base Salary") of $225,000; during the agreement year
ending June 23, 2006, the Base Salary shall be $175,000; and during the Option
Period, the Base Salary shall be $200,000. The Base Salary shall be payable in
accordance with usual payroll practices of the Company.
(b) The Base Salary payable by Encompass for any period shall be
reduced by any cash compensation for such period paid to Executive by PMIC (or
its subsidiaries) or any other indirect or direct majority or wholly owned
subsidiary of Encompass or ACT.
4.3 Bonus.
(a) For each fiscal year or portion thereof after the Original
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,
in an amount determined at the sole discretion of the Compensation Committee,
taking into account Executive's contribution to ACT's consolidated net earnings
and stock appreciation during such fiscal year (the "Overall Performance
Bonus").
(b) Immediately following each fiscal year, Encompass 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 (the "Encompass Performance Bonus" and together with the ACT
Performance Bonus, the "Performance Bonuses"). The Performance Bonuses shall be
paid by Encompass to the extent payable in cash and by ACT to the extent payable
in stock.
3
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 (consolidated basis shall include Encompass and all of
its wholly-owned subsidiaries) 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
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 October 15 of the
immediately following fiscal year.
4.4 Life Insurance.
(a) During the Employment Period, the Company shall provide
Executive with term life insurance with a death benefit equal to $1,000,000,
provided that Executive is insurable. The Company shall pay all premiums with
respect to such life insurance. Such life insurance may be provided either
through the Company's group life insurance programs, by an individual policy, or
by a combination of both group and individual policies. Executive shall at all
times designate the beneficiary(ies) of such life insurance.
(b) In addition to Section 4(a) above, the Company shall maintain
"key man" life insurance on the life of Executive with a death benefit equal to
$2,000,000. The Company shall pay all premiums with respect to such life
insurance. The Company shall at all times designate the beneficiary(ies) of such
"key man" life insurance.
4
4.5 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.
4.6 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 ACT 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.
4.7 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, he 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, with any business activities conducted, or actively
being planned, by the Company during the Restricted Period (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 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 Company, or to
become employed as an employee or retained as a consultant by any person other
than the Company.
5
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 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 him 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 his 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 provide for herein shall be made to the ACT 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.
6
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 his 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.
6.1 Termination For Cause. Notwithstanding anything to the contrary
contained herein, this Agreement may be terminated prior to the expiration of
the Employment Period upon seven (7) days' prior written notice from the Company
to Executive 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
(including, 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 4.6, 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, misfeasance or nonfeasance in the
course of Executive's duties hereunder, or in the judgment of the Board or the
ACT CEO, Executive has been grossly negligent (including habitual neglect of
duties), incompetent or insubordinate in carrying out his 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).
7
6.2 Termination without Cause.
(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 4.6, 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 Sections 4.2, 4.3 and 4.6, 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 (including, but not limited to, unvested stock) shall
immediately cease.
6.3 Termination of Other Positions. Upon the Termination Date,
Executive hereby resigns as Chief Executive Officer of Encompass 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.
8
7. Disability or Death.
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 his duties and responsibilities hereunder to the full extent
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 (including, 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 Sections 4.2, 4.3 and 4.6, 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 (including, 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
Sections 4.2, 4.3 and 4.6, 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.
The Company shall be obligated to indemnify Executive against those liabilities
incurred by him in connection with any proceeding to which he is made a party as
the result of his performing his duties hereunder solely in accordance with, and
as permitted by, the Company's bylaws. As soon as practicable, ACT shall use
commercially reasonable efforts to obtain directors' and officers' insurance in
amounts equal to amounts maintained by publicly companies similarly situated to
that of ACT.
9. Governing Law. This Agreement shall be governed by the internal laws of
the State of Delaware. Any action to enforce any term hereof shall be brought
exclusively within the state or federal courts of Delaware 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 and 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 to (i)
Executive at his last known address on the books of the Company or (ii) the
Company at its principal place of business.
9
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.
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. 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 he has not made any
commitment inconsistent with the provisions hereof and that he is not under any
disability which would prevent him from entering into this Agreement and
performing all of his obligations hereunder.
10
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]
11
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
ENCOMPASS GROUP, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman
ADVANCED COMMUNICATIONS TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: CEO
EXECUTIVE:
/s/ XXXXXX XXXXXXX
---------------------------------------
XXXXXX XXXXXXX
