EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT (this "Agreement") is made this 15th day of July, 1999,
between Xxxxxxxxx International, Inc., a Delaware corporation ("Employer"),
and D. Xxxxx Xxxxxxxx ("Executive").
The parties hereto, in consideration of the mutual covenants contained
herein, agree upon the following terms of employment of Executive by
Employer:
1. EMPLOYMENT AND TERM. Subject to the terms and conditions herein,
Employer hereby employs Executive and Executive hereby accepts employment for
a five-year term commencing on the date hereof and ending at the close of
business on July 14th, 2004 (the "Employment Period"), unless sooner
terminated as hereinafter provided. The Employment Period shall continue
automatically for additional periods of one (1) year each under the same
terms and conditions unless either party shall have given written notice of
termination at least ninety (90) days before the end of the then current
term. All references herein to the Employment Period shall refer to both the
initial Employment Period and any such successive Employment Periods.
2. DUTIES. Executive shall serve as Senior Vice President - Sales of the
Employer. Executive shall perform the duties generally of a Senior Vice
President - Sales for Employer and shall have such specific responsibilities,
duties and authorities as shall from time to time be assigned by the Chief
Executive Officer or the Board of Directors of Employer ("Board of
Directors"). Executive shall devote substantially all of his working time
and efforts to the business and affairs of Employer and its subsidiaries.
Executive shall not be required to relocate his office or residence outside
of Palm Beach County, Florida.
3. COMPENSATION.
(A) SALARY. For all duties to be performed by Executive in any capacity
hereunder, Executive shall be paid an annual salary at a rate determined by
the Board of Directors of not less than $182,185 per year (the "Base Salary")
payable monthly or in such more frequent installments as Employer customarily
pays its other executives. The Board of Directors may authorize upward
compensation adjustments by way of salary, bonus or otherwise, as it deems
appropriate during the Employment Period or any extension hereof.
(B) BONUS. In addition to the Base Salary, Employer shall pay Executive
within sixty (60) days after the end of each fiscal year of Employer which
occurs during the Employment Period a cash bonus in an amount determined by
the Board of Directors but in no event less than $19,550 per year. The
amount of the bonus may exceed such amount to the extent earned in accordance
with performance targets, measurements and such other criteria as shall be
established for such fiscal year by the Board of Directors.
(C) VACATION. Executive shall be entitled each year to a reasonable
period of paid vacation.
(D) FRINGE BENEFITS. Executive shall be entitled to participate in or
receive benefits under any employee benefit plan or arrangement made
available by Employer or its subsidiaries in the future to its executives and
key management employees, subject to and on a basis consistent with the
terms, conditions and overall administration of such plans and arrangements.
(E) EXPENSES. It is understood that Executive will from time to time
incur reasonable expenses in conjunction with his employment. Employer will
promptly reimburse him for any such expenses of which he shall present a
signed itemized written account setting forth the amount and nature of each
such expenditure, and in addition, with respect to travel or entertainment,
the business purpose, the nature of discussions and other person or persons
involved and such other information as Employer may reasonably require;
provided that such
expenses are incurred and accounted for in accordance with such other
policies and procedures then established by Employer.
4. TERMINATION. Unless otherwise agreed to in writing by Employer and
Executive, Executive's employment hereunder may be terminated under the
following circumstances, in addition to terminations pursuant to Section 5
hereof:
(A) DEATH. Executive's death.
(B) DISABILITY. If, as a result of Executive's incapacity due to physical
or mental illness (such incapacity being determined by the Board of Directors
in its sole reasonable discretion), Executive shall have been absent from his
full-time duties as described hereunder for the entire period of six (6)
consecutive months, Employer may terminate Executive's employment hereunder.
(C) CAUSE.
(1) Employer may terminate Executive's employment hereunder for Cause.
For purposes of this Agreement, "Cause" shall mean that (a) Executive is
convicted of a felony which, in the sole determination of the Board of
Directors, would have a material adverse effect on Executive's ability to
perform his duties hereunder or on the business or reputation of Employer;
(b) Executive has exhibited gross misconduct resulting in material harm to
Employer, its business or reputation; (c) Executive has willfully
misappropriated Employer assets or has otherwise willfully defrauded
Employer, including without limitation by fraud, theft, embezzlement, or
breach of a fiduciary duty involving personal profit; (d) Executive has
intentionally failed to perform his duties hereunder; or (e) Executive has
breached any provision of this Agreement. For the purposes of this Section
4(C)(1), no act or failure to act on Executive's part shall be considered
"willful" unless done, or omitted to be done, by him not in good faith and
without reasonable belief that his action or omission was in the best
interests of Employer.
(2) Notwithstanding the foregoing, any termination of Executive shall not
be considered a termination for Cause pursuant to this Section 4, and shall
be considered a termination Without Cause pursuant to Section 4(D) hereof, if
such termination is effected without: (a) reasonable notice to Executive
setting forth the reasons for Employer's intention to terminate for Cause;
(b) an opportunity for Executive, together with his counsel, to be heard
before the Board of Directors; and (c) delivery to Executive of a Notice of
Termination as provided for in Section 4(I) hereof from the Board of
Directors finding that in the good faith opinion of the Board of Directors,
Executive was guilty of conduct set forth above in the preceding sentence,
and specifying the particulars thereof in detail.
(D) WITHOUT CAUSE. Any termination of Executive by Employer (including
any action which is deemed a termination of Executive pursuant to Section
4(F) hereof), other than a termination pursuant to Sections 4(A)-4(C) hereof,
shall be deemed a termination Without Cause.
(E) TERMINATION BY EXECUTIVE. Executive may terminate this Agreement (1)
due to the Executive's retirement; provided that Executive provides Employer
with thirty (30) days written notice, pursuant to Section 4(I), prior to the
effective date of such retirement, as shall be stated in such notice, and (2)
for any reason other than Executive's retirement; provided that the Executive
provides Employer with sixty (60) days written notice prior to the effective
date of such termination, as shall be stated in such notice.
(F) OTHER EVENTS OF TERMINATION. The following circumstances shall
specifically be deemed a termination Without Cause of Executive's employment
by Employer:
2
(1) a vote by the Board of Directors to terminate Executive Without Cause,
as defined in Section 4(D) hereof;
(2) any termination of Executive's employment which is not effected
pursuant to a Notice of Termination satisfying the requirements of Section
4(I) hereof;
(3) a breach by Employer of this Agreement, and a subsequent election by
Executive to terminate this Agreement pursuant to Section 4(E) above; or
(4) the performance of any other act by Employer which is designed to
prevent and does prevent Executive from properly performing the authorities,
duties and responsibilities of his employment hereunder, including without
limitation a material change in the duties or position of Executive within
Employer.
(G) PAYMENTS IF WITHOUT CAUSE. If Executive's employment is terminated
for any reason pursuant to Section 4(D) hereof, Employer shall continue to
pay Executive his Base Salary and bonus in accordance with and at such times
specified in Sections 3(A) and 3(B) and provide the benefits pursuant to
Section 3(E) for the greater of: (1) one (1) year from the Date of
Termination, or (2) the balance of the Employment Period. In addition, the
vesting schedules, if any, under all stock options held by Executive shall
continue to run to the maximum extent permitted by applicable law.
(H) PAYMENTS UNDER OTHER TERMINATIONS. If Executive's employment is
terminated pursuant to Sections 4(A), 4(B), 4(C) or 4(E) hereof, on and after
the Date of Termination Employer shall no longer be obligated to pay
Executive any amounts payable hereunder for such period, whether in the form
of Base Salary, bonus or otherwise, and Executive shall have no right to
compensation or other benefits hereunder for any such period.
Notwithstanding the foregoing, Employer shall be obligated to pay to
Executive all amounts payable hereunder and otherwise, through and including
the Date of Termination, whether such amounts were payable prior to the date
of termination or thereafter, and Executive shall be entitled to receive any
extension of benefits beyond the Date of Termination, provided that (1) such
benefits were received by Executive prior to the Date of Termination and (2)
such extension is customarily offered by Employer to its employees or is
otherwise required by applicable law.
(I) NOTICE OF TERMINATION. Any termination of Executive's employment by
Employer or by Executive (other than termination pursuant to Section 4(A)
hereof) shall be communicated by written Notice of Termination to the other
party hereto. For purposes of this Agreement, a "Notice of Termination"
shall mean a notice which shall (1) indicate the specific termination
provision in this Agreement relied upon; (2) set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated; and (3) contain any
other information required by this Agreement.
(J) EFFECTIVE DATE OF TERMINATION. For purposes of this Section 4, "Date
of Termination" shall mean: (1) if Executive's employment is terminated by
his death, the date of his death; (2) if Executive's employment is terminated
pursuant to Section 4(B) hereof, the termination date stated in the written
notice sent by Employer after the expiration of six (6) consecutive months of
Executive's incapacity due to physical or mental illness, as set forth in
Section 4(B) hereof (provided that Executive shall not have returned to the
performance of his duties on a full-time basis during such six (6) month
period); (3) if Executive's employment is terminated pursuant to Sections
4(C) or 4(D) hereof, the date that the Notice of Termination is communicated
to Executive pursuant to Section 4(I) hereof; (4) if Executive's employment
is terminated pursuant to Section 4(E) hereof, the termination date stated in
the written notice received by Employer; or (5) if deemed terminated pursuant
to Section 4(F) hereof, the date of such action which is deemed a termination
of Executive by Employer.
3
5. TERMINATION OF EMPLOYMENT UPON CHANGE OF CONTROL.
(A) CERTAIN DEFINITIONS.
(1) "Change of Control" shall mean:
(a) The acquisition by any person, entity or "group" required to file a
Schedule 13D or Schedule 14D-1 promulgated under the Securities Exchange Act
of 1934 (the "Exchange Act") (excluding, for this purpose, A. Xxxxxxx
Xxxxxxxx, Xx., Employer, its subsidiaries, or any employee benefit plan of
Employer, or its subsidiaries which acquires beneficial ownership of voting
securities of Employer, including shares acquired pursuant to the exercise of
options or warrants, or conversion of preferred stock outstanding as of the
date hereof) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of over 25% (in one or more transactions,
in the aggregate) of either the then outstanding shares of common stock or
the combined voting power of Employer's then outstanding voting securities
entitled to vote generally in the election of directors; or
(b) An election or appointment to the Board of Directors by virtue of
which the individuals who immediately prior thereto constituted the Board of
Directors (the "Incumbent Board") no longer constitute at least a majority of
the Board of Directors, provided that any person who becomes a director
subsequent to the date hereof whose election, or nomination for election by
Employer's stockholders, was approved by a vote of at least a majority of the
Incumbent Board (other than an election or nomination of an individual whose
initial assumption of office is in connection with an actual or threatened
election contest relating to the election of the Directors of Employer, as
such terms are used in Rule 14a-1 promulgated under the Exchange Act) shall
be, for purposes of this Agreement, considered as though such person were a
member of the Incumbent Board; or
(c) Approval by the stockholders of Employer of: (i) a reorganization,
merger or consolidation by reason of which persons who were the stockholders
of Employer immediately prior to such reorganization, merger or consolidation
do not, immediately thereafter, own more than fifty percent (50%) of the
combined voting power entitled to vote generally in the election of directors
of the reorganized, merged or consolidated company's then outstanding voting
securities, or (ii) a liquidation or dissolution of Employer or the sale of
all or substantially all of the assets of Employer (whether such assets are
held directly or indirectly).
(2) "Date of Termination", for the purposes of this Section 5, means the
date of receipt by Executive of a notice of termination of employment from
Employer or any later date specified therein, or the date Executive delivers
a letter of resignation to Employer.
(3) The "Effective Date" shall be the date on which a Change of Control
occurs. Anything in this Agreement to the contrary notwithstanding, if
Executive's employment with Employer is terminated prior to the date on which
a Change of Control occurs, and it is reasonably demonstrated that such
termination (a) was at the request of a third party who has taken steps
reasonably calculated to effect a Change of Control or (b) otherwise arose in
connection with or anticipation of a Change of Control, then for all purposes
of this Agreement the "Effective Date" shall mean the date immediately prior
to the date of such termination.
(B) OBLIGATIONS OF EMPLOYER UPON TERMINATION. If within one (1) year
following the Effective Date of a Change of Control, Executive's employment
is deemed terminated Without Cause, Employer shall pay to Executive in a lump
sum in cash within thirty (30) days after the Date of Termination to the
extent not theretofore paid, Executive's compensation (including bonuses) and
fringe benefits, at the rate in effect on the Date of Termination, through
the remaining Employment Period, BUT NOT less than two (2) times the annual
compensation (including bonuses) and fringe benefits (except that Executive,
at his option, may choose to continue to
4
have he and his family covered, to the extent they are then covered, by
Employer's health plan in lieu of receiving a lump sum payment for that
benefit, and Employer shall use reasonable efforts to cooperate in such
event); provided that the payment under this subsection (B) shall be reduced
to the extent required so that such payment, either alone or together with
other payments which Executive has the right to receive from Employer, shall
not be an excess parachute payment within the meaning of Section 280G(b) of
the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations promulgated thereunder, or successor provisions of similar
import. The determination of any reduction shall be made by the independent
certified public accountants of Employer.
(C) NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent or
limit Executive's continuing or future participation in any benefit, bonus,
incentive or other plans, programs, policies or practices provided by
Employer or its subsidiaries and for which Executive may qualify, nor shall
anything herein limit or otherwise affect such rights as Executive may have
under any stock option or other agreements with Employer or any of its
subsidiaries. Amounts which are vested benefits or which Executive is
otherwise entitled to receive under any plan, policy, practice or program of
Employer or any of its subsidiaries at or subsequent to the Date of
Termination shall be payable in accordance with such plan, policy, practice
or program; provided that the vesting schedules, if any, under all stock
options held by Executive shall continue to run to the maximum extent
permitted by applicable law.
6. CONFIDENTIALITY.
(A) In the course of his employment, Employer or any of its subsidiaries
may disclose or make known to Executive, and Executive may be given access to
or may become acquainted with, certain information, trade secrets or both,
including but not limited to confidential information and trade secrets
regarding tapes, computer programs, designs, skills, procedures,
formulations, methods, documentation, drawings, facilities, customers,
policies, marketing, pricing, customer lists and leads, and other information
and know-how, all relating to or useful in Employer's business or the
business of its subsidiaries and/or affiliates (collectively, the
"Information"), and which Employer considers proprietary, desires to maintain
confidential and is not in the public domain. During the Employment Period
and at all times thereafter, Executive shall not in any manner, either
directly or indirectly, divulge, disclose or communicate to any person or
firm, except to or for Employer's benefit as directed by Employer or except
as required by applicable law or court process (but only after giving
Employer written notice so that Employer may attempt to obtain a protective
order), any of the Information which he may have acquired in the course of or
as an incident to his employment by Employer, the parties agreeing that such
information affects the successful and effective conduct of Employer's
business and its goodwill, and that any breach of the terms of this Section 6
is a material breach of this Agreement.
(B) All equipment, documents, memoranda, reports, records, files,
materials, samples, books, correspondence, lists, other written and graphic
records, and the like (collectively, the "Materials") affecting or relating
to the business of Employer or of its subsidiaries and/or affiliates, which
Executive shall prepare, use, construct, observe, possess or control shall be
and remain Employer's sole property or in Employer's exclusive custody, and
must not be removed from the premises of Employer except as directed by
Employer's Board of Directors in writing. Promptly upon termination of the
Agreement or Executive's employment hereunder for any reason, or otherwise
upon request of the Chief Executive Officer of Employer, the Information, the
Materials and all copies thereof in the custody or control of Executive shall
be delivered to Employer.
7. RESTRICTIVE COVENANT. During the Employment Period, Executive will
not, directly or indirectly:
5
(A) engage in any trade or business directly competitive with that of any
of Employer or any of its subsidiaries, anywhere in the United States or such
other country or countries in which Employer actively engages in its trade or
business as of the Date of Termination ("Territory");
(B) become associated as a manager, supervisor, employee, consultant,
advisor, control shareholder (either individually or as part of an affiliated
group), or otherwise of any person, corporation or entity engaging in any
trade or business directly competitive with those of Employer or any of its
subsidiaries anywhere in the Territory;
(C) call upon any client or clients of Employer or any of its subsidiaries
for the purpose of selling or soliciting for any person, corporation or
entity, other than any of Employer or its subsidiaries, sales of any
products, processes, or services directly competitive with those of Employer
or any of its subsidiaries within the Territory;
(D) divert, solicit or take away any such client or clients of Employer or
any of its subsidiaries for the purpose of selling any products or services
directly competitive with those of Employer or any of its subsidiaries; and
service any contracts or accounts relating to any products or services
directly competitive with those of Employer or any of its subsidiaries for
any person, corporation or entity other than Employer or any of its
subsidiaries; or
(E) induce, influence, combine or conspire with, or attempt to induce,
influence, combine or conspire with, any of the officers or employees of
Employer or any of its subsidiaries to terminate his or her employment with
or to directly compete against Employer or any of its subsidiaries;
provided, however, that nothing herein shall be deemed to preclude Executive
from owning less than five percent (5%) of the outstanding capital stock of
any company whose stock is traded on an established stock exchange or quoted
on Nasdaq. Should any of the time periods or the geographic area set forth
in this Section 7 be held to be unreasonable by any court of competent
subject matter jurisdiction, the parties hereto agree to petition such court
to reduce the time period or geographic area to the maximum permitted by
governing law.
8. ASSIGNMENTS. No party shall assign his or its rights or obligations
under this Agreement without the prior written consent of the other party to
this Agreement.
9. AMENDMENTS. The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a writing signed by the
party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference to this Agreement.
10. REMEDIES. If a party commits a material breach, or is about to commit
a material breach, of any of the provisions of this Agreement, the other
party shall have the right to have the provisions of this Agreement
specifically enforced by any court having equity jurisdiction without being
required to post bond or other security and without having to prove the
inadequacy of the available remedies at law, it being acknowledged and agreed
that any such breach or threatened breach will cause irreparable injury to
the non-breaching party and that the money damages will not provide an
adequate remedy to the non-breaching party. In addition, the non-breaching
party may take all such other actions and remedies available to it under law
or in equity and shall be entitled to such damages as it can show it has
sustained, by reason of such breach.
11. SURRENDER OF BOOKS AND RECORDS. Executive acknowledges that all
lists, books, records, literature, products and any other materials owned by
Employer or its subsidiaries or used by them in connection with the conduct
of their business, shall at all times remain the property of Employer and its
subsidiaries and that upon termination of employment hereunder, irrespective
6
of the time, manner or cause of said termination, Executive will surrender to
Employer and its subsidiaries all such lists, books, records, literature,
products and other materials.
12. SEVERABILITY. If any provision of this Agreement or any other
agreement entered into pursuant to this Agreement is contrary to, prohibited
by or deemed invalid under applicable law or regulation, such provision shall
be inapplicable and deemed omitted to the extent so contrary, prohibited or
invalid, but the remainder of this Agreement shall not be invalidated thereby
and shall be given full force and effect so far as possible. If any
provision of this Agreement may be construed in two or more ways, one of
which would render the provision invalid or otherwise voidable or
unenforceable and another of which would render the provision valid and
enforceable, such provision shall have the meaning which renders it valid and
enforceable.
13. NOTICES. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing (including
electronic transmission) and shall be (as elected by the person giving such
notice) hand delivered by messenger or courier service, electronically
transmitted, or mailed (airmail if international) by registered or certified
mail (postage prepaid), return receipt requested, addressed to:
If to Employer: With a copy to:
Xxxxxxxxx International, Inc. Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx, P.A.
000 Xxxxxxxx Xxxxxx 000 Xxxxx Xxxxxxx Xxxxx
Xxxxx 0000 Suite 000, Xxxx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000 Xxxx Xxxx Xxxxx, Xxxxxxx 00000
(000) 000-0000 (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attn: A. Xxxxxxx Xxxxxxxx, Xx. Attn: Xxxxxxx X. Xxxxxxxx, Esq.
If to Employee:
D. Xxxxx Xxxxxxxx
00000 Xxxxxxxx Xxx Xx.
Xxxxxxx, XX 00000
Telephone:(000) 000-0000
Fax:____________________
or to such other address as any party may designate by notice complying with
the terms of this Section. Each such notice shall be deemed delivered (a) on
the date delivered if by personal delivery; (b) on the date of transmission
with confirmed answer back if by electronic transmission; and (c) on the date
upon which the return receipt is signed or delivery is refused or the notice
is designated by the postal authorities as not deliverable, as the case may
be, if mailed.
14. BINDING EFFECT. All of the terms and provisions of this Agreement
shall be binding upon, inure to the benefit of, and be enforceable by the
parties and their respective administrators, executors, legal
representatives, heirs, successors and permitted assigns, whether so
expressed or not.
15. WAIVER. The failure or delay of any party at any time to require
performance by another party of any provision of this Agreement, even if
known, shall not affect the right of such party to require performance of
that provision or to exercise any right, power or remedy under this
Agreement. Any waiver by any party of any breach of any provision of this
Agreement should not be construed as a waiver of any continuing or succeeding
breach of such provision, a waiver of the provision itself, or a waiver of
any right, power or remedy under this Agreement. No
7
notice to or demand on any party in any circumstance shall, of itself,
entitle such party to any other or further notice or demand in similar or
other circumstances.
16. GOVERNING LAW. This Agreement and all transactions contemplated by
this Agreement shall be governed by, and construed and enforced in accordance
with, the laws of the State of Florida.
17. JURISDICTION AND VENUE. The parties acknowledge that a substantial
portion of the negotiations, anticipated performance and execution of this
Agreement occurred or shall occur in Palm Beach County, Florida. Any civil
action or legal proceeding arising out of or relating to this Agreement shall
be brought in the courts of record of the State of Florida in Palm Beach
County or the United States District Court, Southern District of Florida,
West Palm Beach Division. Each party consents to the jurisdiction of such
court in any such civil action or legal proceeding and waives any objection
to the laying of venue of any such civil action or legal proceeding in such
court. Service of any court paper may be effected on such party by mail, as
provided in this Agreement, or in such other manner as may be provided under
applicable laws, rules of procedure or local rules.
18. ENFORCEMENT COSTS. If any civil action, arbitration or other legal
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default or misrepresentation in connection with any
provision of this Agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorneys' fees, sales and use taxes,
court costs and all expenses even if not taxable as court costs (including,
without limitation, all such fees, taxes, costs and expenses incident to
arbitration, appellate, bankruptcy and post-judgment proceedings), incurred
in that civil action, arbitration or legal proceeding, in addition to any
other relief to which such party or parties may be entitled. Attorneys' fees
shall include, without limitation, paralegal fees, investigative fees,
administrative costs, sales and use taxes and all other charges billed by the
attorney to the prevailing party.
19. ENTIRE AGREEMENT. This Agreement represents the entire understanding
and agreement between the parties with respect to the subject matter of this
Agreement, and supersedes all other negotiations, understandings and
representations (if any) made by and between such parties (including, without
limitation, any and all prior employment agreements and all amendments
thereto between Executive and Employer).
20. SURVIVAL. The provisions of Sections 4, 5, 6 and 8 through 20 shall
survive any termination or expiration of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date and year first above written.
/s/ D. Xxxxx Xxxxxxxx
--------------------------------------
D. Xxxxx Xxxxxxxx, Executive
XXXXXXXXX INTERNATIONAL, INC.
By: /s/ A. Xxxxxxx Xxxxxxxx, Xx.
----------------------------------
A. Xxxxxxx Xxxxxxxx, Xx.
Chief Executive Officer
8
