EXHIBIT 10.8
EXECUTIVE EMPLOYMENT AGREEMENT
BY AND BETWEEN
XxxxXxxxxxx.xxx CORPORATION
AND
XXXX X. XXXXXX
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made and
entered into as of November 1, 1999, by and between Xxxxxxxxxxx.xxx Corporation
f/k/a Divot Golf Corporation f/k/a Brassie Golf Corporation, a Delaware
corporation (the "Company"), and XXXX X. XXXXXX Vice President of Marketing &
Sales ("Executive").
WHEREAS, the Company and Executive desire to enter into this Agreement
to assure the Company of the services of the Executive and to set forth the
respective rights and duties of the parties hereto; and
WHEREAS, the Company: (i) is presently in the business of providing
Internet travel, entertainment and related access services over the Internet
through its ownership and management of various proprietary and technological
holdings, licensing rights, subscription agreements and other related services;
and (ii) intends to invest its available resources in one or more new business
ventures (such activities, present and future, being hereinafter referred to as
the "Business").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, terms and conditions set forth herein, the Company and Executive
agree as follows:
ARTICLE I
Employment
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1.1 Employment and Title: The Company hereby employs Executive and
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Executive hereby accepts such employment, as Vice President of
Marketing & Sales of the Company, all upon the terms and conditions
set forth herein.
1.2 Services: During the Term (as hereinafter defined) hereof, Executive
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agrees to perform diligently and in good faith the duties of Vice
President of Marketing & Sales of the Company under the direction of
the Board of Directors of the Company (the "Board of Directors") or
the Executive Committee of the Board of Directors (the "Executive
Committee"). Executive agrees to devote his best efforts and
substantially all of his full business time, energies and abilities to
the
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services to be performed hereunder and for the exclusive benefit of
the Company. Executive shall be vested with such authority as is
generally commensurate with the position of Vice President of
Marketing & Sales, as further outlined below.
1.3 Location: The principal place of employment and the location of
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Executive's principal offices shall be in the States of Florida,
Georgia and New York; provided, however, Executive shall, from time to
time, temporarily perform outside of the States of Florida, Georgia
and New York, such services as are reasonably required for the proper
execution of his duties under this Agreement.
1.4 Representations: Each party represents and warrants to the other that
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he/it has full power and authority to enter into and perform this
Agreement and that his/its execution and performance of this Agreement
shall not constitute a default under or breach of any of the terms of
any agreement to which he/it is a party or under which he/it is bound.
Each party represents that no consent or approval of any third party
is required for his/its execution, delivery and performance of this
Agreement or that all consents or approvals of any third party
required for his/its execution, delivery and performance of this
Agreement have been obtained.
1.5 Sole Discretion: As the term "sole discretion" is used in this
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Agreement, unless otherwise defined, it will be interpreted as the
exercise of reasonable discretion applying normal business practices
to a contractual relationship between a company and its chairman and
chief executive officer.
ARTICLE II
Term
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2.1 Term: The term of Executive's employment hereunder (the "Term") shall
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commence as of the date hereof (the "Commencement Date") and shall
continue through the fifth anniversary of the Commencement Date (the
"Scheduled Termination Date") unless earlier terminated pursuant to
the provisions of this Agreement.
2.2 Renewal: This Agreement shall be renewed for successive one year terms
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unless either party hereto provides written notice of non-renewal at
least sixty (60) days prior to the Scheduled Termination Date of each
such term. Notwithstanding the foregoing, each renewal hereof shall
constitute a separate and distinct agreement. If notice of non-renewal
is given by either party, all terms of this Agreement shall remain in
full force and effect until the earlier of the following (i) a new
employment agreement is entered into by the parties, or (ii)
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employment is terminated under the terms and conditions in Article VII
hereof.
ARTICLE III
Compensation
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3.1 Base Salary: As compensation for the services to be rendered by
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Executive, the Company shall pay Executive, during the Term of this
Agreement, an annual base salary equal to One Hundred Eighty Thousand
and 00/100 Dollars ($180,000.00), which base salary shall accrue
monthly (prorated for periods less than a month) and shall be paid in
equal bimonthly installments based on the amount of One Hundred Fifty
Thousand dollars ($150,000), in arrears. The base salary of One
Hundred Fifty Thousand dollars ($150,000.00) will be paid in bimonthly
installments and will be reviewed annually, or more frequently, as
appropriate, by the Board of Directors or the Compensation Committee
of the Board of Directors, as the case may be, in its sole discretion,
provided that the annual base salary shall not be decreased below One
Hundred Fifty Thousand Dollars ($150,000.00).
3.2 Vacation & Holidays As further compensation for services to be
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rendered by the executive, the executive shall accrue twenty one days
of annual paid vacation or leave and shall enjoy all regular state and
federal holidays.
3.3 Stock Options: The Company shall issue Executive options to purchase
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Three Million (3,000,000) shares of the Company's common stock at a
per share market value option price as soon as practicable after the
date on which the Company's proposals regarding a Stock Option Plan
commencing the year 2000 and an increase in the Company's authorized
common stock are adopted by the Company's shareholders, if necessary.
The Options shall not be subject to any vesting period. All options
shall have an exercise period of five (5) years. The number and price
of the option shares shall be subject to equitable adjustment in the
event the Company's 1-for-20 reverse stock split is adopted by the
Company's shareholders. (not to be confused with anti-dilution)
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3.4 Incentive Compensation: The Company shall pay Executive, during the
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Term of this Agreement, an annual performance/incentive bonus which
shall be calculated as follows:
Fiscal Year
Revenue Bonus
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$0 - 2,000,000 Five Percent (5%) of Base Salary
$2,000,00 to $5,000,000 Fifteen Percent (15%) of Base Salary
$5,000,00 to $10,000,000 Thirty Percent (30%) of Base Salary
In excess of $10,000,001 Fifty Percent (50%) of Base Salary
3.5 Benefits: Executive shall be entitled, during the Term hereof, to the
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same medical, hospital dental and life insurance coverage and benefits
as are available to the Company's most senior executive officers on
the Commencement Date.
3.6 Withholding: Any and all amounts payable under this Agreement.
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including, without limitation, amounts payable under this Article Ill
and Article VII, are subject to withholding for such federal, state
and local taxes as the Company, in its reasonable judgment, determines
to be required pursuant to any applicable law, rule or regulation.
ARTICLE IV
Working Facilities, Expenses, and Insurance
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4.1 Working Facilities and Expenses: Executive shall be furnished with an
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office at the principal executive offices of the Company, or at such
other location as agreed to by Executive and the Company, and other
working facilities and secretarial and other assistance suitable to
his position and reasonably required for the performance of his duties
hereunder. The Company hereby agrees to reimburse Executive, subject
to the provisions of this Section 4.1, all of the costs of Executive's
maintaining a residence and office in New York. The Company shall
promptly reimburse Executive for all of Executive's reasonable
expenses incurred while employed, and performing his duties under and
in accordance with the terms and conditions of this Agreement, subject
to Executive's full and appropriate documentation, including, without
limitation, receipts for all such expenses in the manner required
pursuant to Company's policies and procedures and the Internal Revenue
Code of 1986, as amended (the "Code"), and applicable regulations as
are in effect from time to time.
4.2 Insurance: The Company may secure in its own name or otherwise, and at
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its own expense, life, disability, and other insurance covering
Executive or Executive and others, and Executive shall not have any
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right, title or interest in or to such insurance other than as
expressly provided herein. Executive agrees to assist the Company in
procuring such insurance by submitting to the usual and customary
medical and other examinations to be conducted by such physicians(s)
as the Company or such insurance company may designate and by signing
such applications and other written instruments as may be required by
any insurance company to which application is made for such insurance.
ARTICLE V
Illness or Incapacity
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5.1 Right to Terminate: If, during the Term of this Agreement, Executive
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shall be unable to perform in all material respects his duties
hereunder for a period exceeding six (6) consecutive months by reason
of illness or incapacity, this Agreement may be terminated by the
Company in its sole discretion pursuant to Section 7.2 hereof.
5.2 Right to Replace: If Executive's illness or incapacity, whether by
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physical or mental cause, renders him unable for a minimum period of
ninety (90) consecutive calendar days to carry out his duties and
responsibilities as set forth herein, the Company shall have the right
to designate a person to replace Executive temporarily in the capacity
described in Article I hereof; provided, however, that if Executive
returns to work from such illness or incapacity within the six (6)
month period following his inability due to such illness or
incapacity, he shall be entitled to be reinstated in the capacity
described in Article I hereof with all rights, duties and privileges
attendant thereto.
5.3 Rights Prior to Termination: Executive shall be entitled to his full
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remuneration and benefits hereunder during such illness or incapacity
unless and until an election is made by the Company to terminate this
Agreement in accordance with the provisions of this Article V.
5.4 Determination of illness or Incapacity: For purposes of this Article
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V. the term "illness or incapacity" shall mean Executive's inability
to perform his duties hereunder substantially on a full-time basis due
to physical or mental illness as determined by the Board of Directors
in accordance with the Company's long-term disability insurance policy
or, in the event Company does not have a long-term disability
insurance policy in effect, in accordance with the following
procedure: Executive and the Company each shall designate a physician
who shall jointly select a third physician and the three (3)
physicians selected would then determine whether or not any illness or
incapacity is such as to prevent Executive from performing his duties
hereunder.
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ARTICLE VI
Confidentiality
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6.1 Confidentiality: During the Term of this Agreement and thereafter,
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Executive agrees to maintain the confidential nature of the Company's
trade secrets, including, without limitation, development ideas,
acquisition strategies and plans, financial information, records,
"know-how", methods of doing business, customer, supplier and
distributor lists and all other confidential information of the
Company. Executive shall not use (other than in connection with his
employment), in any way whatsoever, such trade secrets except as
authorized in writing by the Company. Executive shall, upon the
termination of his employment, deliver to the Company any and all
records, books, documents or any other materials whatsoever (including
all copies thereof) containing such trade secrets, which shall be and
remain the property of the Company.
6.2 Non-Removal of Records: All documents, papers, materials, notes,
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books, correspondence, drawings and other written and graphic records
relating to the Business of the Company which Executive shall prepare
or use, or come into contact with, shall be and remain the sole
property of the Company.
ARTICLE VII
Termination
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7.1 Termination For Cause: This Agreement and the employment of Executive
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may be terminated by the Company for "Just Cause" or "Proper Cause"
and only in any of the following circumstances:
(a) Just Cause: "Just Cause" shall mean that Executive has been
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judicially convicted or has pleaded nolo contendere to any
one of the following offenses: (i) Executive has been
judicially determined to have committed any fraud, theft,
misappropriation or similar act against the Company or
Executive has been judicially declared to have
misappropriated, or embezzled funds in connection with the
Company's business; or (ii) any felony that the Board
determines is detrimental to the Company's reputation or
that otherwise interferes with Executive's ability to
perform his duties under this Agreement.
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(b) Proper Cause: "Proper Cause" shall mean an Executive is in
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default in a material respect in the performance of
Executive's obligations, services or duties hereunder, which
shall include, without limitation: (i) Executive's willful
disregard of the lawful written instructions of the
Executive Committee or the Board of Directors concerning the
performance of his duties within the scope hereof; (ii) Any
conduct of the Executive which is materially inconsistent
with the published policies of the Company, as promulgated
from time to time and which are generally applicable to all
senior executives; or (iii) Executive's breach of any other
material provision of this Agreement, provided, however,
that Executive shall be given written notice of such default
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and a reasonable opportunity to cure such default.
An event giving rise to termination of the Executive's employment,
whether for Just Cause or Proper Cause, shall henceforth be referred
to as "Termination Events."
7.2 Termination Procedure: In the event that the Board determines that a
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Termination Event has taken place with respect to the Executive, the
Board shall undertake the following procedure to terminate Executive's
employment:
(a) The Board shall present Executive with thirty (30) day's
advance written notice of Executive's Just Cause or Proper
Cause termination, and shall include with such notice a copy
of the minutes of the meeting of the Board that reference
the Board's determination that a Termination Event has taken
place.
(b) Executive shall have thirty (30) days after his receipt of
the Board's written notice of Just Cause or Proper Cause
termination in which to deliver to the Board a written
objection to such termination. Upon its receipt of
Executive's written objection, the Board will be required to
do the following:
(1) Within ten (10) day's of its receipt of
Executive's written objection, the Board
shall convene a Special Meeting to
review such objection. Executive shall
receive notice of, and shall have the
right to be present at any such meeting,
and may present evidence that serves to
contradict the Board's determination
that a Termination Event has occurred.
The Board shall have five (5) days
following such Special Meeting in which
to reverse its decision to terminate
Executive. If the Executive has not been
informed of such reversal within such
five (5) day
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period, Executive shall have ten (10)
days in which to appeal the matter to
binding arbitration.
(c) Arbitration Procedure: Should Executive elect to submit the
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Board's decision to binding arbitration, such arbitration
shall take place within thirty (30) days, in accordance with
the American International Commercial Arbitration Rules. The
number of arbitrators shall be three; the Board shall choose
one arbitrator, the Executive shall choose one arbitrator,
and both arbitrators shall choose a third arbitrator. The
place of arbitration shall be New York City, New York, and
the language of the arbitration shall be English. No
discovery shall be permitted in such dispute, other than
exchange of relevant documents ordered by the arbitrators.
The maximum number of days of hearings in such arbitration
shall be 3, all of which shall occur consecutively. The
arbitrators' decision shall be limited to whether a Just
Cause or Proper Cause termination is justified under the
circumstances. Such decision shall be binding upon all
parties.
7.3.1 Executive to Remain in Position: Notwithstanding any other provision
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of this Agreement to the contrary, should Executive object to a Just
Cause or Proper Cause Termination Notice, he shall remain in his
position, with the same duties and for the same compensation as set
forth in this Agreement, during the course of such objection, until
such time as Executive accepts the Board's decision or a final
decision is rendered with respect to the matter or that the has been
determined through arbitration or appeal.
(a) A Termination for cause delivered to Executive pursuant to
this Agreement shall effective as of the date set forth in a
written notice of termination delivered to Executive (which
shall be no less than thirty (30) days following the
delivery of written notice), but shall not be earlier than
the date such written notice is delivered to Executive.
7.4 Termination Without Cause: This Agreement and the employment of the
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Executive may be terminated "Without Cause" as follows:
(a) By mutual agreement of the parties hereto; or
(b) At the election of the Company by its giving not less than
sixty
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(60) days written notice to Executive in the event of
an illness or incapacity described in Section 5.1; or
(c) At the election of the Executive by his giving not less than
sixty (60) days written notice to the Company; or
(d) Upon the Scheduled Termination Date or on the last day of
any renewal term in the event of non-renewal of this
Agreement; or
(e) Upon Executive's death.
A Termination Without Cause under Section 7.4(b), (c) or (d) hereof
shall be effective upon the date set forth in a written notice of
termination delivered hereunder, which shall be not less than sixty
(60) days nor more than one hundred twenty (120) days after the giving
of such notice. A Termination Without Cause under Section 7.4(a), (d)
or (e) hereof shall be automatically effective upon the date of mutual
agreement, or the Scheduled Termination Date or the last day of any
renewal term, or the date of death of the Executive, as the case may
be.
7.5 Effect of Termination For Cause: If Executive's employment is
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terminated For Cause:
(a) Executive shall be entitled to accrued base salary under
Section 3.1 Through the date of termination which shall be
paid by the Company within sixty (60) days of the date of
termination;
(b) Executive shall be entitled to reimbursement for expenses
accrued through the date of termination in accordance with
the provisions of Section 4.1 hereof which shall be paid by
the Company within sixty (60) days of the date of
termination; and
(c) Except as provided in Article XI, this Agreement shall
thereupon be of no further force and effect.
7.6 Effect of Termination Without Cause: If Executive's employment is
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terminated Without Cause except pursuant to Section 7.4(c) or (e)
hereof:
(a) Executive shall be entitled to accrued base salary under
Section 3.1 through the date of termination which shall be
paid by the Company within sixty (60) days of the date of
termination;
(b) Executive shall be entitled to reimbursement for expenses
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accrued through the Scheduled Termination Date in accordance
with the provisions of Section 4.1 hereof which shall be
paid by the Company within sixty (60) days of the date of
termination;
(c) Executive shall be entitled to receive: (i) a lump sum
payment equal to the sum of the present value of 100% of
Executive's base salary for the balance of the term of this
Agreement; and (ii) a lump sum severance payment in the
amount of Three Hundred Fifty Thousand Dollars ($350,000.00)
(collectively, the "Severance Payments") which shall be paid
by the Company within sixty (60) days of the date of
termination. In addition, in the event of a termination
without cause for any reason other than death, Executive
shall be entitled to receive the No renewal Payment (as
defined in Section 7.7);
(d) Right of Lien Executive shall be issued a UCC 1 which shall
be recorded by the company in the amount of Three Hundred
Fifty Thousand Dollars ($350,000.00) (collectively, the
"Severance Payments") for the purpose of security in the
event of default under the provisions of this agreement.
Upon payment in full of all shares and money Executive shall
release said lien.
(e) Except as provided in Article XI, this Agreement shall
thereupon be of no further force or effect. Any amounts due
from Company pursuant above and not paid to Executive as and
when due shall accrue interest at the prime rate of interest
as established from time to time by Chase Manhattan Bank of
New York. Company may purchase insurance to cover all or any
part of its obligations set forth in this Section, and
Executive agrees to take a physical examination to
facilitate the purchase of such insurance.
7.7 Non-Renewal of Agreement: In the event that Company shall not have
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made a Qualifying Offer (as hereinafter defined) to Executive on or
before the Scheduled Termination Date of this Agreement, and no other
agreement between Executive and Company relating to the extension of
Executive's employment shall have been entered into by the Scheduled
Termination Date, Executive shall receive (after having given the
Company written notice of its failure to deliver a Qualifying Offer,
and after not having received such Qualifying Offer from the Company
within five (5) business days from the delivery of such notice to the
Company) a contract termination payment of $350,000.00 (the
"Non-renewal Payment") from the Company. Such Non-renewal Payment
shall be due within sixty (60) days following the Scheduled
Termination Date of Executive's employment.
(a) Qualifying Offer: The term "Qualifying Offer" shall mean a
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written offer of employment to Executive which: (i) shall be
for a period of not less than five years from the Scheduled
Termination Date, (ii) shall include the types of
compensation contained in this Agreement, (iii) shall
constitute a reasonable offer taking into account
Executive's compensation set forth in this Agreement; (iv)
the Company's financial and operating performance during the
term of this Agreement; (v) any other then-current
circumstances relevant to the determination of Executive's
compensation by Company for the period specified in (i);
(vi) shall not contain any terms or provisions which reduce
Executive's title or duties as stated herein, and (vii)
shall state that it is irrevocable for 30 days from the date
of delivery thereof.
(b) In the event that the parties shall disagree as to whether
or not an offer timely made by Company in accordance with
the foregoing constitutes a Qualifying Offer, the parties
shall submit such disagreement to arbitration by a qualified
individual executive compensation expert of national
reputation, who shall not have had dealings with either
party during the preceding five (5) years.
7.8 Constructive Termination: Prior to the expiration of the Term,
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Executive shall have the right to terminate his employment under this
Agreement, upon thirty (30) days' notice to the Company given within
sixty (60) days following the occurrence of any of the following
events ("Constructive Termination Events"); provided, however, that
the Company shall have twenty (20) days after the date such notice has
been given to the Company in which to cure the conduct or cause
specified in such notice:
(a) A material breach by the Company of a material obligation of
the Company under this Agreement;
(b) A failure of the Company to pay when due to the Executive
any annual base salary, annual bonus or other earned bonus
or awards or commissions referred to in this Agreement;
(c) The relocation of the Executive's principal place of
employment to a location not within a 30 mile radius of such
place of employment on the Effective Date;
(d) A material reduction by the Company of the Executive's
duties or responsibilities;
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(e) The failure of the Company to obtain an agreement reasonably
satisfactory to the Executive from any successor to assume
and agree to perform this Agreement, or, if the business for
which the Executive's services are principally performed is
sold or transferred, the failure of the Company to obtain
such an agreement from the purchaser or transferee of such
business; or
(f) The Company shall fail to grant Executive's stock options
for provided for herein.
Following a Constructive Termination Event and proper notice by the
Executive as set forth herein, Executive may terminate his employment
with the Company and shall be entitled to receive the Severance
Payments and the Non-renewal Payment as set forth in Sections 7.6 and
7.7 of this Agreement. In the event the Executive terminates
Executive's employment as a result of a Constructive Termination Event
and the Company objects in writing to the Executive's determination
that there was Constructive Termination Event within (30) days after
Executive has notified the Company of the same, the matter shall be
resolved by arbitration in accordance with the provisions of Section
7.2(c). If the Company fails to object to any such determination of
Constructive Termination in writing within such thirty (30) day
period, it shall be deemed to have waived its right to object to that
determination. If such arbitration determines that there was not
proper Constructive Termination, such termination shall be deemed to
be a termination pursuant to subsection 7.4(c).
7.9 Certain Payments: The parties believe that the payments to Executive
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hereunder do not constitute "Excess Parachute Payments" under Section
28OG of the Code. Notwithstanding such belief, if any payment or
benefit under this Agreement is determined to be an `Excess Parachute
Payment," Company shall pay Executive an additional amount (the "Tax
Payment") such that (i) the excess of all Excess Parachute Payments
(including payments under this sentence) over the sum of excise tax
thereon under Section 4999 of the Code and income tax thereon under
Subtitle A of the Code and under applicable state law is equal to (ii)
the excess of all Excess Parachute Payments (excluding payments under
this sentence) over income tax thereon under Subtitle A of the Code
and under applicable state law.
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ARTICLE VIII
Non-Competition and Non-Interference
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8.1 Non-Competition: Executive may advise, lend money, manage, control,
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trade, sell, lease, license or otherwise own technology in any private
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company, however, Executive's ownership interest may not directly or
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indirectly exceed 50% of the total issued and outstanding shares of
any one company whether said company is or is not in direct
competition with the Company. Executive shall be permitted to own up
to 5% of the issued and outstanding shares of capital stock of any
corporation which has a class of equity securities registered under
Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended.
8.2 Non-Interference: Executive agrees, that during the Term hereof and,
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in the case of a Termination For Cause or a Termination Without Cause
pursuant to Section 7.2(d) hereof, for a period of one (1) year
thereafter, Executive will not, directly, indirectly or as an agent on
behalf of or in conjunction with any person, firm, partnership
corporation or other entity, induce or entice any employee of the
Company to leave such employment or cause anyone else to do so.
8.3 Severability: If any covenant or provision contained in this Article
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VIII is judicially determined to be void or unenforceable in whole or
in part, it shall not be deemed to affect or impair the validity of
any other covenant or provision. If, in any arbitration or judicial
proceeding, a tribunal shall refuse to enforce all of the separate
covenants deemed included in this Article VIII, then such
unenforceable covenants shall be deemed eliminated from the provisions
hereof for the purpose of such proceedings to the extent necessary to
permit the remaining separate covenants to be enforced in such
proceedings.
ARTICLE IX
Remedies
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9.1 Equitable Remedies: Executive and the Company agree that the services
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to be rendered by Executive pursuant to this Agreement, and the rights
and interests granted and the obligations to be performed by Executive
to the Company pursuant to this Agreement, are of a special, unique,
extraordinary and intellectual character, which gives
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them a peculiar value, the loss of which cannot be reasonably or
adequately compensated in damages in any action at law, and that a
breach by Company of any of the terms of this Agreement will cause the
Executive great and irreparable injury and damage. The parties hereby
expressly agree that the Executive shall be entitled to the remedies
of injunction, specific performance, and other equitable relief to
prevent a breach of Articles VI and VIII of this Agreement, both
pendente lite and permanently, as such breach would cause irreparable
injury to Executive and a remedy at law would be inadequate and
insufficient. Therefore, Executive may in addition to pursuing other
remedies, obtain an injunction from any court having jurisdiction in
the matter restraining any further violation.
9.2 Rights and Remedies Preserved: Nothing in this Agreement shall limit
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any right or remedy the Company or Executive may have under this
Agreement or pursuant to them, for any breach of this Agreement by the
other party. The rights granted to the parties herein are cumulative
and the election of one shall not constitute a waiver of such party's
right to assert all other legal remedies available under the
circumstances.
ARTICLE X
Miscellaneous
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10.1 No Waivers: The failure of either party to enforce any provision of
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this Agreement shall not be construed as a waiver of any such
provision nor prevent such party thereafter from enforcing such
provision or any other provision of this Agreement.
10.2 Notices: Any notice to be given to the Company and Executive under the
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terms of this Agreement may he delivered personally, by telecopy,
telex or other form of written electronic transmission, or by
registered or certified mail, postage prepaid, and shall be addressed
as follows:
If to the Company: OrbitTravel .com Corporation
c/o Xxxxxx X. Xxxxxxx,
Xxx Xxxxx Xxxxxx Xxxxx, Xxxxx 00-X
Xxx Xxxx, Xxx Xxxx
Attention: Legal Committee
With a Copy to: Xxxxxxx Xxxxxxx, Esq.
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00 Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
If to Executive: Xxxx X. Xxxxxx
Xxx Xxxxx Xxxxxx Xxxxx, Xxxxx 00-X
Xxx Xxxx, Xxx Xxxx 00000
Either party may hereafter notify the other in writing of any change
in address. Any notice shall be deemed duly given (1) when personally
delivered, (ii) when telecopied, telexed or transmitted by other form
of written electronic transmission (upon confirmation of receipt) or
(iii) on the third day after it is mailed by registered or certified
mail, postage prepaid, as provided herein.
10.3 Severability: The provisions of this Agreement are severable and if
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any provision of this Agreement shall be held to be invalid or
otherwise unenforceable, in whole or in part, the remainder of the
provisions, or enforceable parts thereof, shall not be affected
thereby.
10.4 Successors and Assigns: The rights and obligations of the Company
----------------------
under this Agreement shall inure to the benefit of and be binding upon
the successors and assigns of the Company, including the survivor upon
any merger, consolidation, share exchange, or combination of the
Company with any other entity. Executive shall not have the right to
assign, delegate or otherwise transfer any duty or obligation to be
performed by him hereunder to any person or entity.
10.5 Entire Agreement: This Agreement supersedes all prior and
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contemporaneous agreements and understandings between the parties
hereto, oral or written, and may not be modified or terminated orally-
No modification, termination or attempted waiver shall be valid unless
in writing, signed by the party against whom such modification,
termination or waiver is sought to be enforced. This Agreement was the
subject of negotiation by the parties hereto and their counsel. The
parties agree that no prior drafts of this Agreement shall be
admissible as evidence (whether in any arbitration or court of law) in
any proceeding which involves the interpretation of any provisions of
this Agreement.
10.6 Governing Law: This Agreement shall be governed by and construed in
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accordance with the internal laws of the State of Florida without
reference to the conflict of law principles thereof.
10.7 Section Headings: The section headings contained herein are for the
----------------
purposes of convenience only and are not intended to define or limit
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the contents of said sections.
10.8 Attorneys Fees: In the event of any litigation arising out of this
--------------
Agreement, the prevailing party shall be entitled to recover from the
non-prevailing party reasonable attorneys fees and costs incurred.
10.9 Further Assurances: Each party hereto shall cooperate and shall take
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such further action and shall execute and deliver such further
documents as may be reasonably requested by the other party in order
to carry out the provisions and purposes of this Agreement.
10.10 Gender: Whenever the pronouns "he" or "his" are used herein they shall
------
also be deemed to mean "she" or "hers" or "it" or "its" whenever
applicable. Words in the singular shall be read and construed as
though in the plural and words in the plural shall be read and
construed as though in the singular in all cases where they would so
apply.
10.11 Counterparts: This Agreement may be executed in counterparts, all of
------------
which taken together shall be deemed one original.
10.12 Survival: The provisions of Articles VI, VII, VIII, IX and X, of this
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Agreement shall survive the termination of this Agreement whether
upon, or prior to, the Scheduled Termination Date hereof.
ARTICLE XI
Survival
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11.1 Survival. The provisions of Articles VI, VII, VIII, IX and X, of this
Agreement shall survive the termination of this Agreement whether
upon, or prior to, the Scheduled Termination Date hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
XxxxxXxxxxx.xxx Corporation
a Delaware Corporation
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Title Chairman & CEO
/s/ Xxxx X. Xxxxxx
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XXXX X. XXXXXX Executive
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