LAW FIRM ENGAGEMENT AGREEMENT WITH STEIN MART, INC.
Exhibit 10.1
LAW FIRM ENGAGEMENT
AGREEMENT
WITH
XXXXX MART, INC.
This Agreement (this “Agreement”) entered into in the City of Jacksonville and State of Florida between Xxxxx Mart, Inc., a Florida corporation and its divisions, subsidiaries and affiliates (the “Company”), and XXXXXXXXX & XXXXXX, P.A. (which, together with its president, Xxxxxxxx X. Xxxxxx, “Xxxxxx”, and with Xxxxxx and Xxxxxxxxx & Xxxxxx, P.A. collectively called the “Firm”), is made as of April 1, 2011 (the “Effective Date”).
In consideration of the promises and mutual covenants contained herein, the parties, intending to be legally bound, agree as follows:
| SECTION | 1. TERM OF ENGAGEMENT |
| (a) | Term. The Company agrees to employ the Firm, and the Firm agrees to be employed by the Company, for a period of two (2) year(s) beginning on the Effective Date (the “Term”). |
| SECTION | 2. DEFINITIONS |
“Board of Directors” means the Board of Directors of Xxxxx Mart, Inc. and any of its divisions, affiliates or subsidiaries.
“Cause” means the occurrence of any one or more of the following:
| (a) | the Firm has been convicted of, or pleads guilty or nolo contendere to, a felony involving dishonesty, theft, misappropriation, embezzlement, fraud crimes against property or person, or moral turpitude which negatively impacts the Company; or |
| (b) | the Firm intentionally furnishes materially false, misleading, or omissive information concerning a substantial matter to the Company or persons to whom the Firm reports; or |
| (c) | the Firm intentionally fails to fulfill any assigned responsibilities for compliance with the Xxxxxxxx-Xxxxx Act of 2002 or violates the same; or |
| (d) | the Firm intentionally and wrongfully damages material assets of the Company; or |
| (e) | the Firm intentionally and wrongfully discloses material Confidential Information of the Company; or |
| (f) | the Firm intentionally and wrongfully engages in any competitive activity which would constitute a material breach of the duty of loyalty; or |
| (g) | the Firm intentionally breaches any stated material policy or any material provision of the Company’s Ethics Policy which could reasonably be expected to expose the Company to liability, or |
| (h) | the Firm intentionally commits a material breach of this Agreement, or |
| (i) | the Firm intentionally engages in acts or omissions which constitute failure to follow reasonable and lawful directives of the Company, provided, however, that such acts or omissions are not cured within five (5) days following the Company’s giving notice to the Firm that the Company considers such acts or omissions to be “Cause” under this Agreement. |
No act, or failure to act, on the part of the Firm shall be deemed “intentional” if it was due primarily to an error in judgment or negligence, but shall be deemed “intentional” only if done, or omitted to be done, by the Firm not in good faith and without reasonable belief that his action or omission was in or not opposed to the best interests of the Company. Failure to meet performance standards or objectives shall not constitute Cause for purposes hereof, nor shall actions or inactions taken or not taken by the firm in the good faith belief that such actions or inactions were required in order to comply with the Florida Bar Association’s Code of Professional Conduct.
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“Change in Control” means the occurrence of any of the following: (a) the Board approves the sale of all or substantially all of the assets of the Company in a single transaction or series of related transactions; (b) the Company sells and/or one or more shareholders sells a sufficient amount of its capital stock (whether by tender offer, original issuance, or a single or series of related stock purchase and sale agreements and/or transactions) sufficient to confer on the purchaser or purchasers thereof (whether individually or a group acting in concert) beneficial ownership of at least 35% of the combined voting power of the voting securities of the Company; (c) the Company is party to a merger, consolidation or combination, other than any merger, consolidation or combination that would result in the holders of the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the Company (or such surviving entity) outstanding immediately after such merger, consolidation or combination; or (d) a majority of the board of directors consists of individuals who are not Continuing Directors (for this purpose, a Continuing Director is an individual who (i) was a director of the Company on January 1, 2010 or (ii) whose election or nomination as a director of the Company is approved by a vote of at least a majority of the directors then comprising the Continuing Directors). For purposes hereof, the definition of a Change of Control shall be construed and interpreted so as to comply with the definition contained in Code Section 409A.
“Code” means the Internal Revenue Code of 1986, as amended. Any reference to a specific provision of the Code shall be deemed to refer to any successor provision thereto and the regulations promulgated thereunder.
“Commencement Date” means the Effective Date.
“Compensation Committee” means the Company’s Compensation Committee or, if no such committee exists, the term Compensation Committee shall mean the Company’s Board of Directors.
“Competing Business” means any business which (i) at the time of determination, is substantially similar to the whole or a substantial part of the business conducted by the Company or any of its divisions or affiliates; (ii) at the time of determination, is operating a store or stores which, during its or their fiscal year preceding the determination, had aggregate net sales, including sales in leased and licensed departments, in excess of $10,000,000, if such store or any such stores is or are located in a city or within a radius of 25 miles from the outer limits of a city where the Company, or any of its divisions or affiliates, is operating a store or stores which, during their fiscal year preceding the determination, had aggregate net sales, including sales in leased and licensed departments, in excess of $10,000,000; and (iii) had aggregate net sales at all locations, including sales in leased and licensed departments and sales by its divisions and affiliates, during its fiscal year preceding that in which the Firm first rendered personal services thereto, in excess of $25,000,000.
“Continuation Period” means a period following the Termination Date of the Firm’s the Engagement with the company equal to:
| (i) | twelve (12) months (a) following a termination by the Company due to a non-renewal of the Term of this Agreement under §5(a) hereof, or (b) following a termination by the Company without Cause or by the Firm for Good Reason under §5(b) hereof, or |
| (ii) | twenty-four (24) months following a termination (a) by the Company without Cause following a Change in Control under §5(f)(i) hereof, or (b) by the Firm for Good Reason following a Change in Control under §5(b) as the definition of Good Reason is expanded in §5(b)(i) hereof |
“Current Insurance Coverage” means medical and dental insurance with coverage consistent with the lesser of (i) the coverage in effect at the Firm’s termination, or (ii) the coverage in effect from time to time as applied to persons in a Senior Vice President position with the Company at the time of termination.
“Disability” means the Xxxxxx’x incapacity due to physical or mental illness or cause, which results in the Firm being unable to perform his duties with Company under this Agreement for a period of six (6) consecutive months. Any dispute as to disability shall be conclusively determined by written opinions rendered by two qualified physicians, one selected by the Firm, and one selected by Company; provided that if such opinions are conflicting, then such physicians shall select a mutually agreeable third physician whose opinion shall be conclusive and binding.
“Earned Bonus” means the bonus paid, if any, pursuant to the Company’s incentive compensation plans in effect from time to time. Earned Bonus shall be prorated based on the ratio of the number of days during such year that the Firm was employed to 365.
“Engagement” means the Engagement of Xxxxxxxxx & Xxxxxx, P.A. and Xxxxxx to perform legal services for the Company as provided in this Agreement.
“Good Reason” means the occurrence of any one or more of the following:
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| (i) | a material and continuing failure to pay to the Firm compensation and benefits (as described in Section 4) that have been earned, if any, by the Firm, except failure to pay or provide compensation or benefits that are in dispute between the Company and the Firm unless such failure continues following the resolution of such dispute; or |
| (ii) | a material reduction in the Firm’s compensation or benefits (as described in Section 4) which is materially more adverse to the Firm than similar reductions applicable to other executives of a similar level of status within the Company as the Firm; or |
| (iii) | any failure by the Company to comply with any of the material provisions of this Agreement and which is not remedied by the Company within thirty (30) days after receipt of notice thereof given by the Firm; or |
| (iv) | any requirement that the Firm perform duties that, in the good faith and reasonable professional judgment of the Firm, after consultation with the Board of Directors of the Company, are inconsistent with ethical or lawful business practices; or |
| (v) | the Firm’s being required to relocate to a principal place of Engagement more than one-hundred (100) miles from his current principal place of Engagement in Jacksonville, Florida during the Term unless the Company shall pay all reasonable costs and expenses related thereto; or |
| (vi) | if following a Change in Control only, there occurs a material change in the Firm’s duties, roles, or responsibilities. For purposes of this subsection, “material change” shall be of such a character that a reasonable person serving in a like or similar executive capacity would feel compelled to resign from the Engagement. Examples of “material change” include, but are not limited to substantial reduction of the Firm’s authority to make decisions relating to his or its business responsibilities; the Firm being required to assume or perform substantially greater responsibilities (without additional compensation) than previously required to perform; substantial reduction of the Firm’s responsibilities for personnel matters relating to his or her business operations; substantial alteration or change in the Firm’s work schedule; any restructuring or reassignment of any of the Firm’s responsibilities, in a manner that diminishes them or is materially adverse to the Firm, from that which was in effect at the time of the Change in Control; and other substantial changes in the Firm’s terms or conditions of Engagement not related to the Firm’s principal business responsibilities. Good Reason pursuant to this subsection shall not exist unless (a) the Firm’s “material change” has existed for a period of at least six months; (b) the Firm has consulted with management senior to the Firm and his or her supervisor, in a good faith effort to resolve the issues giving the Firm reason to believe a “material change” has occurred; and (c) the Firm gives written notice of the Firm’s resignation for Good Reason under this paragraph within eight months following the commencement of the “material change”. |
“Termination Date” means the date of the Firm’s termination of the Engagement, or if the Firm continues to provide services to Xxxxx Mart, Inc. or its 409A affiliates following his termination of the Engagement, such later date as is considered a separation from service from Xxxxx Mart, Inc. and its 409A affiliates within the meaning of Code Section 409A. For purposes of this Agreement, the Firm’s “termination of the Engagement” shall be presumed to occur when Xxxxx Mart, Inc. and the Firm reasonably anticipate that no further services will be performed by the Firm for Xxxxx Mart, Inc. and its 409A affiliates or that the level of bona fide services the Firm will perform as general counsel of Xxxxx Mart, Inc. and its 409A affiliates will permanently decrease to no more than 20% of the average level of bona fide services performed by the Firm for Xxxxx Mart, Inc. and its 409A affiliates over the immediately preceding 36-month period (or such lesser period of services). Whether the Firm has experienced a termination of the Engagement shall be determined by Xxxxx Mart, Inc. in good faith and consistent with Section 409A of the Code to the extent such section is applicable to the Engagement.
SECTION 3. TITLE, POWERS AND RESPONSIBILITIES
| (a) | Title. The Firm shall be general counsel to the Company and Xxxxxx shall have the status and authority of a Senior Vice-President of the Company or such other title as designated by the Chief the Firm Officer or the Company’s Board of Directors. The Firm shall assume those duties on the Commencement Date. |
| (b) | Powers and Responsibilities. |
| (i) | The Firm shall use the Firm’s best efforts to faithfully perform the duties of the Engagement and shall perform such duties as are usually performed by a person serving in the Firm’s position with a business similar in size and scope as the Company and such other additional duties as may be prescribed from time to time by the Company which are reasonable and consistent with the Company’s operations, and in accordance with all professional and ethical standards applicable to the Firm. Xxxxxx shall serve on such boards and in such offices of the Company or its subsidiaries as the Company’s Board of Directors reasonably requests without additional compensation. |
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| (ii) | The Firm, as a condition to the Engagement under this Agreement, represents and warrants that it can assume and fulfill responsibilities described in Section 3(b)(i) without any risk of violating any non-compete or other restrictive covenant or other agreement to which he is a party. During the Employment Term the Firm shall not enter into any agreement that would preclude, hinder or impair his ability to fulfill responsibilities described in Section 3(b)(i) specifically or this Agreement generally. |
SECTION 4. COMPENSATION AND BENEFITS
| (a) | Annual Base Fee. The Firm’s base fee shall be $180,000.00 per year (“Annual Base Fee”) payable quarterly in advance based on the Company’s fiscal quarters, which amount may be periodically reviewed at the discretion of the Company. |
| (b) | Earned Bonus; Incentive Compensation. The Firm shall be eligible to receive an Earned Bonus. The Firm shall also be eligible to participate in such annual and long term incentive plans as are in effect from time to time as applicable to persons at the Senior Vice President level of authority and position. |
| (c) | Limited Participation in Benefit Plans. The Firm shall not be entitled to receive any other benefits which a Senior Vice President would be eligible to receive except that Xxxxxx shall be entitled to participate in the Company’s Current Insurance Coverage as though he were a Senior Vice President of the Company. For avoidance of doubt, the Firm will not participate in the company’s Deferred Compensation Plan, 401K Plan, Split Dollar Insurance Plan or other benefit plans unless expressly incorporated into this Agreement. |
| (d) | Stock Options. The Board of Directors, in its discretion, may grant rights to the Firm under the Xxxxx Mart, Inc. Omnibus Plan (the “Option Plan”) on terms set by the Board of Directors or the Compensation Committee. |
| (e) | Expense Reimbursements. The Firm shall have the right to expense reimbursements in accordance with the Firm’s standard policy on expense reimbursements as in effect from time to time. |
| (f) | Indemnification. If and to the extent Xxxxxx acts in a capacity as an officer or agent of the Company, with respect to his acts or failures to act in that capacity, the Firm shall be entitled to indemnification from the Company, and to liability insurance coverage (if any), on the same basis as other officers of the Company. The Firm shall be indemnified by Company, and Company shall pay the Firm’s related expenses when and as incurred, all to the full extent permitted by law. Subject to applicable law, the Company reserves the right to discontinue indemnification in the event the Company determines that the Firm has breached this Agreement or the Firm has advances, or intends to advance, a business or legal position contrary to the Company’s interests. Notwithstanding the foregoing, the Firm shall not be entitled to any indemnification if a judgment or other final adjudication establishes that any act or omission of the Firm was material to the cause of action so adjudicated and that such act or omission constituted: (i) a criminal violation, unless the Firm had reasonable cause to believe that the Firm’s conduct was lawful or had no reasonable cause to believe that such conduct was unlawful, (ii) a transaction from which the Firm derived an improper personal benefit, or (iii) willful misconduct or a conscious disregard for the best interests of the Company. |
| (g) | Limitation. The Company reserves the right to alter, modify, revise or eliminate any or all benefit plans and perquisites applicable to the Firm including, without limitation, the Annual Incentive Compensation Plan, the Long Term Incentive Compensation Plan and the Current Insurance Coverage; provided that any such change to the terms will apply to the Firm and similarly situated participants. |
SECTION 5. TERMINATION OF EMPLOYMENT
| (a) | General; Non-Renewal. The Board of Directors shall have the right to terminate the Firm’s Engagement and this Agreement at any time with or without Cause, and the Firm shall have the right to terminate the Engagement and this Agreement at any time with or without Good Reason; provided that obligations under this Section 5, Section 6 and Section 7 shall survive termination of the Agreement. The Board of Directors may delegate its powers to terminate the Firm to the persons to whom the Firm reports. In the event the Company elects not to renew the Firm’s the Engagement following the end of the Term with compensation and benefits not materially less advantageous to the Firm than those set forth in this Agreement, but the Firm is willing and able to enter into a renewal of this Agreement with compensation and benefits not materially less advantageous to the Firm than those set forth in this Agreement, then upon termination of the Firm’s the Engagement, (i) the Company shall pay the Firm its normal Annual Base Fee |
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| over a six month following the Termination Date, and (ii) the Company shall continue until the end of the Continuation Period to maintain in effect for such the Firm at the Company’s cost the Firm’s Current Insurance Coverage. |
| (b) | Termination by Board of Directors without Cause or by the Firm for Good Reason. If (i) the Board of Directors terminates the Firm’s the Engagement without Cause, or (ii) the Firm resigns for Good Reason, then in either of those circumstances, the Company’s only obligation to the Firm under this Agreement (except as provided in §5(f) hereof) shall be to pay the Firm its earned but unpaid Annual Base Fee, if any, pro-rated up to the Termination Date, plus 100% of the then total Annual Base Fee as specified in Section 4(a) payable in periodic payments for twelve (12) consecutive months beginning on the Termination Date. During the Continuation Period Xxxxxx shall also continue to receive, at the Company’s cost, the Current Insurance Coverage. |
| (c) | Termination by the Board of Directors for Cause or by the Firm without Good Reason. If the Board of Directors of the Company terminates the Firm’s Engagement for Cause or the Firm resigns without Good Reason, the Company’s only obligation to the Firm under this Agreement shall be to pay the Firm its earned but unpaid Annual Base Fee, if any, pro-rata up to the date of his termination of the Engagement, and the Company shall have no obligation to pay any Earned Bonus with respect to the year during which the Termination Date occurs. |
| (d) | Termination for Disability. Subject to the definitions and requirements of Section 2 (“Disability”), after six (6) consecutive months of such disability leave of absence by Xxxxxx, the Firm’s service may be terminated by Company. In the event the Firm is terminated from the Engagement due to Disability, the Company shall: |
| (i) | pay the Firm its Annual Base Fee pro-rata through the end of the month in which the Engagement terminates as soon as practicable after his the Engagement terminates; |
| (ii) | pay the Firm its Earned Bonus, pro rata and if any, for the fiscal year in which such termination of the Engagement occurs, which amount shall be paid at the same time the Earned Bonus would have been paid had the Firm remained in the Engagement; |
| (iii) | pay the Firm an additional nine (9) months of compensation at then-Annual Base Fee, which aggregate amount shall be payable in equal semi-monthly installments beginning on the Termination Date and continuing for nine (9) months thereafter; |
| (iv) | pay premiums for COBRA coverage as provided in Section 5(g); and |
| (v) | in the event the Firm has any options or restricted shares (but excluding “performance shares” which shall be governed by the terms set forth in the grant as to such shares) which are not vested on the date of termination for Disability, then pay to the Firm (i) as to any unvested options, the net value of the excess, if any, of the closing price of the Company’s shares on the NASDAQ for the day on which the termination due to Disability occurs and the exercise price of such unvested options multiplied by the number of shares subject to options which failed to vest; and (ii) as to any unvested restricted shares, the value of the closing price of the Company’s shares on the NASDAQ for the day on which the termination due to Disability occurs multiplied by the number of restricted shares, if any, which failed to vest due to such termination of the Engagement for Disability. |
Notwithstanding Xxxxxx’x Disability, during the period of Disability leave, the Firm shall be paid in full (net of insurance) as if he were actively performing services. During the period of such Disability leave of absence, the Board of Directors may designate another person or law firm to perform the Firm’s duties. The Firm shall have the right to return to full-time service so long as Xxxxxx is able to resume and faithfully perform his full-time duties.
| (e) | Death. If the Firm’s the Engagement terminates as a result of Xxxxxx’x death, the Company shall: |
| (i) | pay to the Firm’s its Annual Base Fee pro-rata through the end of the month in which his the Engagement terminates as soon as practicable after his death; |
| (ii) | pay to the Firm’s its Earned Bonus, when actually determined, for the year in which the Firm’s death occurs; and |
| (iii) | in the event the Firm has any options or restricted shares (but excluding “performance shares” which shall be governed by the terms set forth in the grant as to such shares) which are not vested on the date of termination for death, then pay to the Firm’s (i) as to any unvested options, the net value of the excess, if any, of the closing price of the Company’s shares on the NASDAQ for the day on which the death occurred and the exercise price of such unvested options multiplied by the number of shares subject to options which failed to vest; and (ii) as to any unvested restricted shares, the value of the closing price of the Company’s shares on the NASDAQ for the day on which the death occurred multiplied by the number of restricted shares, if any, which failed to vest due to such termination of the Engagement for death. |
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Any amounts payable to the Firm under this Agreement which are unpaid at the date of the Xxxxxx’x death or payable hereunder or otherwise by reason of his death, shall be paid in accordance with the terms of this Agreement to the Firm’s estate.
| (f) | Change in Control. If a Change in Control occurs, then for a period beginning on the occurrence of the Change in Control and ending two years following that occurrence (the “Post Change in Control Period”): |
| (i) | In addition to the other events constituting Good Reason under this Agreement, the following shall also constitute Good Reason: if the Firm is willing and able to continue the Engagement with the Company but the Company exercises its right to either not renew this Agreement, or only offers to renew this Agreement only under conditions or terms which would constitute a “material change” (as that term is defined in the definition of Good Reason), provided, however, that notice of exercise of the Firm’s termination for Good Reason must be received by the Company during the Post Change in Control Period and not later than thirty (30) days after the Company exercises its right not to renew this Agreement or to renew the Agreement only on terms which would constitute a “material change”; and |
| (ii) | In the event of termination of the Firm’s the Engagement with the Company pursuant to §5(b) hereof either by the Company without Cause, or by the Firm for Good Reason (as such term is expanded to include the circumstances described in §5(f)(i) above), with notice of such termination given within the Post Change in Control Period, then the Firm shall receive the following (the “CIC Severance Payments”) in a lump sum payable in funds immediately available in Jacksonville, Florida on the Termination Date: an amount equal to 200% of the sum of (A) the total of severance payments (other than continued insurance coverage) provided under §5(b) of this agreement (and in lieu thereof), and (B) the Earned Bonus in the year of the Termination Date. For purposes of this subsection (f) Earned Bonus shall not be prorated and shall be an amount equal to “Target” bonus as defined in the Company’s incentive compensation plan in effect from time to time. |
| (g) | Benefit Continuation. Provided Xxxxxx is eligible for COBRA coverage, and has not been terminated from the Engagement for Cause or resigned without Good Reason, then the Company shall pay Xxxxxx’x COBRA premiums commencing on the date of the Firm’s termination of the Engagement and continuing for the applicable Continuation Period in order to continue Xxxxxx’x health insurance coverage and maintain such coverage in effect; provided that following the end of the COBRA continuation period, if Xxxxxx’x health insurance coverage is provided under a health plan that is subject to Code Section 105(h), benefits payable under such health plan shall comply with the requirements of Treasury Regulation Section 1.409A-3(i)(1)(iv) and, if necessary, the Company shall amend such health plan to comply therewith. |
| (h) | Relinquishment of Corporate Positions. Xxxxxx shall automatically cease to be an officer and/or director of the Company and its affiliates as of his date of termination of the Engagement. |
| (i) | Limitation. Anything in this Agreement to the contrary notwithstanding, the Firm’s entitlement to or payments under any other plan or agreement shall be limited to the extent necessary so that no payment to be made to the Firm on account of termination of his the Engagement with the Company will be subject to the excise tax imposed by Code Section 4999, but only if, by reason of such limitation, the Firm’s net after tax benefit shall exceed the net after tax benefit if such reduction were not made. “Net after tax benefit” shall mean (i) the sum of all payments and benefits that the Firm is then entitled to receive under any section of this Agreement or other plan or agreement that would constitute a “parachute payment” within the meaning of Section 280G of the Code, less (ii) the amount of federal income tax payable with respect to the payments and benefits described in clause (i) above calculated at the maximum marginal income tax rate for each year in which such payments and benefits shall be paid to the Firm (based upon the rate in effect for such year as set forth in the Code at the time of the first payment of the foregoing), less (iii) the amount of excise tax imposed with respect to the payments and benefits described in clause (i) above by Section 4999 of the Code. Any limitation under this Section 5(i) of the Firm’s entitlement to payments shall be made in the manner and in the order directed by the Firm. |
SECTION 6. COVENANTS BY EXECUTIVE
| (a) | Company Property. Upon the termination of the Firm’s Engagement for any reason, the Firm shall promptly return all Company Property which had been entrusted or made available to the Firm by the Company. “Property” means all records, files, memoranda, communication, reports, price lists, plans for current or prospective business operations, customer lists, drawings, plans, sketches, keys, codes, computer hardware and software and other property of any kind or description prepared, used or possessed by the Firm during the Firm’s the Engagement by the Company (and any duplicates of any such Property) together with any and all information, ideas, concepts, discoveries, processes, |
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| intellectual property, inventions and the like conceived, made, developed or acquired at any time by the Firm individually or with others during the Firm’s the Engagement which relate to the Company or its products or services or operations. |
| (b) | Trade Secrets. The Firm agrees that the Firm shall hold in a fiduciary capacity for the benefit of the Company and shall not directly or indirectly use or disclose any Trade Secret that the Firm may have acquired during the term of the Firm’s the Engagement by the Company for so long as such information remains a Trade Secret. “Trade Secret” means information, including, but not limited to, technical or non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing or a process that (1) derives economic value, actual or potential, from not being generally known to, and not being generally readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and (2) is the subject of reasonable efforts by the Company to maintain its secrecy. This Section 6(b) is intended to provide rights to the Company which are in addition to, not in lieu of, those rights the Company has under the common law or applicable statutes for the protection of trade secrets. |
| (c) | Confidential Information. During the Employment Term and continuing thereafter indefinitely, the Firm shall hold in a fiduciary capacity for the benefit of the Company, and shall not directly or indirectly use or disclose, any Confidential Information that the Firm may have acquired (whether or not developed or compiled by the Firm and whether or not the Firm is authorized to have access to such information) during the term of, and in the course of, or as a result of the Firm’s the Engagement by the Company without the prior written consent of the Board of Directors unless and except to the extent that such disclosure is (i) made in the ordinary course of the Firm’s performance of his duties under this Agreement or (ii) required by any subpoena or other legal process (in which event the Firm will give the Company prompt notice of such subpoena or other legal process in order to permit the Company to seek appropriate protective orders). “Confidential Information” means any secret, confidential or proprietary information possessed by the Company or any of its subsidiaries or affiliates, including, without limitation, trade secrets, customer or supplier lists, details of client or consultant contracts, current and anticipated customer requirements, pricing policies, price lists, market studies, business plans, operational methods, marketing plans or strategies, advertising campaigns, information regarding customers or suppliers, computer software programs (including object code and source code), data and documentation data, base technologies, systems, structures and architectures, inventions and ideas, past current and planned research and development, compilations, devices, methods, techniques, processes, financial information and data, business acquisition plans and new personnel acquisition plans and the terms and conditions of this Agreement that has not become generally available to the public. |
| (d) | Non-Competition. The Firm recognizes that his duties will entail the receipt of Trade Secrets and Confidential Information as defined in this Section 6. Those Trade Secrets and Confidential Information have been developed by the Company at substantial cost and constitute valuable and unique property of the Company. Accordingly, the Firm acknowledges that protection of Trade Secrets and Confidential Information is a legitimate business interest. The Firm agrees not to compete with the Company during the Employment Term and for a reasonable and limited period thereafter. Therefore, during the Employment Term and during the applicable Continuation Period thereafter (or, in the event of as termination for Cause by the Company or without Good Reason by the Firm, a period of two (2) years following the Termination Date), the Firm shall not have an investment of $100,000.00 or more in a Competing Business (as defined herein) and shall not render legal services to any such Competing Business in any manner, including, without limitation, as owner, partner, director, trustee, officer, employee, consultant or advisor thereof. If the Firm shall breach the covenants contained in this Non-Competition provision, the Company shall have no further obligation to make any payment to the Firm pursuant to this Agreement and may recover from the Firm all such damages as it may be entitled to at law or in equity. In addition, the Firm acknowledges that any such breach is likely to result in irreparable harm to the Company. The Company shall be entitled to specific performance of the covenants in this Section 6, including entry of a temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in addition to any damages and legal expenses which the Company may be legally entitled to recover. The Firm acknowledges and agrees that the covenants in this Section 6 shall be construed as agreements independent of any other provision of this Agreement or any other agreement between the Company and the Firm, and that the existence of any claim or cause of action by the Firm against the Company, whether predicated upon this Agreement or any other agreement, shall not constitute a defense to the enforcement by the Company of such covenants. The provisions of this subsection (d) shall not be applicable to the Firm if (i) the Firm is terminated from the Engagement without Cause, (ii) the Firm resigns from the Engagement for Good Reason, or (iii) the Company elects not to renew the Firm’s the Engagement following the end of the Term with compensation and benefits not materially less advantageous to the Firm than those set forth in this Agreement, but the Firm is willing and able to enter into a renewal |
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| of this Agreement with compensation and benefits not materially less advantageous to the Firm than those set forth in this Agreement. |
| (e) | Non-Solicitation. During the Employment Term and for a period of two years hereafter (such period is referred to as the “No Recruit Period”), the Firm will not solicit, either directly or indirectly, any person that he or it knows or should reasonably know to be an employee of the Company, whether any such employees are now or hereafter through the No Recruit Period so employed or engaged to terminate their the Engagement with the Company. The foregoing is not intended to limit any legal rights or remedies that any employee of the Company may have under common law with regard to any interference by the Firm at any time with the contractual relationship the Company may have with any of its employees. |
| (f) | Reasonable and Continuing Obligations. The Firm agrees that the Firm’s obligations under this Section 6 are obligations which will continue beyond the date the Firm’s the Engagement terminates and that such obligations are reasonable, fair and equitable in scope. The terms and duration are necessary to protect the Company’s legitimate business interests and are a material inducement to the Company to enter into this Agreement. the Firm further acknowledges that the consideration for this Section 6 is his the Engagement or continued the Engagement. The Firm will not be paid any additional compensation during this Restricted Period for application or enforcement of the restrictive covenants contained in this Section 6. |
| (g) | Work Product. The term “Work Product” includes any and all information, programs, concepts, processes, discoveries, improvements, formulas, know-how and inventions, in any form whatsoever, relating to the business or activities of the Company, or resulting from or suggested by any work developed by the Firm in connection with the Company, or by the Firm at the Company’s request. The Firm acknowledges that all Work Product developed during the Term is property of the Company and accordingly, the Firm does hereby irrevocably assign all Work Product developed by the Firm to the Company and agrees: (a) to assign to the Company, free from any obligation of the Company to the Firm, all of the Firm’s right, title and interest in and to Work Product conceived, discovered, researched, or developed by the Firm either solely or jointly with others during the term of this Agreement and for three (3) months after the termination or nonrenewal of this Agreement; and (b) to disclose to the Company promptly and in writing such Work Product upon the Firm’s acquisition thereof. |
SECTION 7. MISCELLANEOUS
| (a) | Notices. Notices and all other communications shall be in writing and shall be deemed to have been duly given when personally delivered or when mailed by United States registered or certified mail. Notices to the Company shall be sent to: |
XXXXX MART, INC
Attention: Chief Executive Officer
0000 Xxxxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Notices and communications to the Firm shall be sent to the address the Firm most recently provided to the Company.
| (b) | No Waiver. No failure by either the Company or the Firm at any time to give notice of any breach by the other of, or to require compliance with, any condition or provision of this Agreement shall be deemed a waiver of any provisions or conditions of this Agreement. |
| (c) | Governing Law. This Agreement shall be governed by Florida law without reference to the choice of law principles thereof. |
| (d) | Assignment. This Agreement shall be binding upon and inure to the benefit of the Company and any successor in interest to the Company or any segment of such business. The Company may assign this Agreement to any affiliate or successor that acquires all or substantially all of the assets and business of the Company or a majority of the voting interests of the Company. The Company will require any successor (whether direct or indirect, by operation of law, by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of Company) to expressly assume and agree to perform this Agreement in the same manner and to the same extent that Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall |
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| mean Company as defined above and, unless the context otherwise requires, any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise. the Firm’s rights and obligations under this Agreement are personal and shall not be assigned or transferred. |
| (e) | Other Agreements. This Agreement replaces and merges any and all previous agreements and understandings regarding all the terms and conditions of the Firm’s Engagement relationship with the Company, and this Agreement constitutes the entire agreement between the Company and the Firm with respect to such terms and conditions. |
| (f) | Amendment. No amendment to this Agreement shall be effective unless it is in writing and signed by the Company and by the Firm. |
| (g) | Invalidity and Severability. If any part of this Agreement is held by a court of competent jurisdiction to be invalid or otherwise unenforceable, the remaining part shall be unaffected and shall continue in full force and effect, and the invalid or otherwise unenforceable part shall be deemed not to be part of this Agreement. |
| (h) | Litigation. In the event that either party to this Agreement institutes litigation against the other party to enforce his or its respective rights under this Agreement, each party shall pay its own costs and expenses incurred in connection with such litigation. As a material part of the consideration for this Agreement, BOTH PARTIES HERETO WAIVE ANY RIGHT TO A TRIAL BY A JURY in the event of any litigation arising from this Agreement. All legal actions arising out of or connected with this Agreement must be instituted solely in the Circuit Court of Xxxxx County, Florida, or in the Federal District Court for the Middle District of Florida, Jacksonville Division, and all parties hereto do hereby agree to submit to the exclusive personal jurisdiction of such courts. Each of the parties hereby expressly and irrevocably submits to the jurisdiction of such courts for the purposes of any such action and expressly and irrevocably waives, to the fullest extent permitted by law, any objection which it may have or hereafter may have to the laying of venue of any such action brought in any such court and any claim that any such action has been brought in an inconvenient forum. |
| (i) | Counterparts. This Agreement may be executed in counterparts each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. |
IN WITNESS WHEREOF, the Company and the Firm have executed this Agreement effective as of the Effective Date.
| XXXXX MART, INC. | XXXXXXXXX & XXXXXX, P.A. | |||
| By: /s/ X. Xxxx Xxxxxxx |
By: /s/ Xxxxxxxx X. Xxxxxx | |||
| Name: X. Xxxx Xxxxxxx | Xxxxxxxx X. Xxxxxx, President | |||
| Title: EVP, Chief Administrative Officer | ||||
| Date: 3/29/11 | Date: 3/29/11 | |||
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