EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is effective as of
May 9, 1997 (the "Effective Date"), between QPQ Corporation, a Florida
corporation (the "Company"), whose principal place of business is 0000 Xxxxxx
Xxxx, Xxxxx 000, Xxxx Xxxxx, XX 00000, and C. Xxxxxxxx Xxxxxxxx, an individual
(the "Employee"), whose address is 0000 Xxxxx Xxxxx Xxxxxxxxx, Xxx. 00X,
Xxxxxxxx Xxxxx, XX 00000.
WHEREAS, the Company is a Florida corporation engaged in providing medical
services, developing restaurants and other activities;
WHEREAS, the Company desires to employ the Employee and the Employee
desires to be employed by the Company; and
WHEREAS, the Company has established a valuable reputation and goodwill in
its business, with expertise in all aspects of its businesses (the "Business");
and
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Company and the Employee do hereby agree as follows:
1. RECITALS. The above recitals are true, correct, and are herein
incorporated by reference.
2. EMPLOYMENT. The Company hereby employs the Employee, and the
Employee hereby accepts employment, upon the terms and conditions hereinafter
set forth.
3. AUTHORITY AND POWER DURING EMPLOYMENT PERIOD.
(a) DUTIES AND RESPONSIBILITIES. During the term of this
Agreement, Employee shall serve as Chief Executive Officer and Chairman of the
Board of Directors of the Company and shall have general executive and operating
supervision over the property, business and affairs of the Company, its
subsidiaries and divisions, subject to the guidelines and direction of the board
of directors of the Company. It is further the intention of the parties that at
all times during the "Term," as hereinafter defined, of this Agreement, the
Employee shall serve as a member of the board of directors of the Company and
shall be elected and serve through the Term of the Agreement as chairman of the
board of directors. In the event Employee shall at any time not be on the board
of directors of the Company and serving as chairman of such board, it shall be
presumed (if Employee so elects) that the Employee has been terminated other
than for cause and Employee shall have all of the rights specified in Section
6(f) of this Agreement just as if the Employee had been terminated "Without
Cause."
(b) TIME DEVOTED. Throughout the term of the Agreement, the
Employee shall devote the necessary time and attention to the business and
affairs of the Company consistent with the Employee's senior executive position
with the Company, except for reasonable vacations and except for illness or
incapacity, but nothing in the Agreement shall preclude the Employee from
engaging in personal business and/or serving as a member of the board of
directors of other related companies, charitable and community affairs. However,
the Company acknowledges that employee engages in other business activities
provided that such activities do not interfere with the regular performance of
the Employee's duties and responsibilities under this Agreement.
4. TERM. The Term of employment hereunder will commence on the
Effective Date as set forth above and be for five (5) years from the Effective
Date provided that the Employee shall be entitled to three one-year extensions
to be exercisable by written notice given by the Employee to the Company at
least forty-five (45) days before the expiration of the Term or a Renewal Term,
as the case may be, unless terminated pursuant to Section 6 of this Agreement.
5. COMPENSATION AND BENEFITS.
(a) SALARY. The Employee shall be paid a base salary (the "Base
Salary"), payable bi-weekly, at an annual rate of no less than One Hundred
Twenty Thousand Dollars ($120,000) for the first year, with annual incremental
increases of the greater of: (i) the percentage increase in the Consumer Price
Index, all items, as published by the United States Department of Labor, since
the Effective Time (in the case of the first annual increase) or since the most
recent anniversary of the Effective Time (in the case of all subsequent annual
increases), or (ii) six percent (6%) of the previous year's base salary.
(b) BONUS COMPENSATION.
(i) OPTIONS. Employee shall be initially granted 200,000
shares of stock as a signing bonus and an additional 500,000 options to purchase
QPQ Common Stock at an exercise price of $.25 per share. Such options shall vest
immediately and expire ten (10) years from the date of this Agreement. Employee
shall receive annually an additional 200,000 options to purchase QPQ Common
Stock. The exercise price shall be the average of the closing bid and asked
price for QPQ Common Stock for the twenty (20) trading days prior to the date of
this grant. The shares and options granted shall be non-dilutive until December
31, 1997.
(c) EMPLOYEE BENEFITS. The Employee shall be entitled to participate
in all benefit programs of the Company currently existing or hereafter made
available to executives and/or other salaried employees, including, but not
limited to, pension and other retirement plans, group life insurance,
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hospitalization, surgical and major medical coverage, sick leave, salary
continuation, vacation and holidays, cellular telephone and all related costs
and expenses, long-term disability, and other fringe benefits.
(d) VACATION. During each fiscal year of the Company, the Employee
shall be entitled to reasonable time and to utilize such vacation as the
Employee shall determine; provided however, that the Employee shall evidence
reasonable judgment with regard to appropriate vacation scheduling.
Notwithstanding the foregoing, Employee shall be entitled to four (4) weeks
vacation per year.
(e) BUSINESS EXPENSE REIMBURSEMENT. During the Term and any
Renewal Term of employment, the Employee shall be entitled to receive proper
reimbursement for all reasonable, out-of-pocket expenses incurred by the
Employee (in accordance with the policies and procedures established by the
Company for its senior executive officers) in performing services hereunder,
provided the Employee properly accounts therefor.
(f) AUTOMOBILE EXPENSES. The Company shall provide the Employee
with an automobile of the Employee's choice. The Company shall also be
responsible for all expenses in connection with such automobile including, but
not limited to, maintenance, insurance and gas.
(g) MEMBERSHIPS, DUES. The Company shall provide to the Employee a
membership in a social, charitable or religious organization or club, which
membership shall be either in the name of the Employee or in the name of the
Company, as determined by the Employee.
(h) CHARITABLE CONTRIBUTIONS. The Company shall pay or reimburse
the Employee for charitable donations or contributions made, which amount and
which charities shall be determined in the sole discretion of the Employee,
provided, however, that such donations or contributions shall not exceed $10,000
in any fiscal year.
(i) LIFE INSURANCE. The Company shall pay or reimburse Employee
for premiums and other charges associated with such life insurance policies as
Employee and the Company shall mutually agree.
6. CONSEQUENCES OF TERMINATION OF EMPLOYMENT.
(a) DEATH. In the event of the death of the Employee during the
Term or any Renewal Term of the Agreement, salary shall be paid to the
Employee's designated beneficiary, or, in the absence of such designation, to
the estate or other legal representative of the Employee for a period of one (1)
year from and after the date of death. The Company shall also be obligated to
pay to the Employee's estate or heirs, as the case may be, such amount of Bonus
based upon (i) the formula set forth in Section 5(b) of this Agreement for the
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fiscal year in which the death of the Employee occurred, (ii) divided by twelve
(12); and (iii) then multiplied by the number of months or any portions thereof
the Employee was employed by the Company just prior to the Employee's death.
Except as set forth herein, other death benefits will be determined in
accordance with the terms of the Company's benefit programs and plans.
(b) DISABILITY.
(i) In the event of the Employee's disability, as
hereinafter defined, the Employee shall be entitled to compensation in
accordance with the Company disability compensation practice for senior
executives, including any separate arrangement or policy covering the Employee,
but in all events the Employee shall continue to receive the Employee's salary
for a period, at the annual rate in effect immediately prior to the commencement
of disability, of not less than 180 days from the date on which the disability
has deemed to occur as hereinafter provided below. Any amounts provided for in
this Section 6(b) shall be offset by other long-term disability benefits
provided to the Employee by the Company.
(ii) "Disability," for the purposes of this Agreement, shall
be deemed to have occurred in the event (A) the Employee is unable by reason of
sickness or accident, to perform the Employee's duties under this Agreement for
an aggregate of 180 days in any twelve-month period or (B) the Employee has a
guardian of the person or estate appointed by a court of competent jurisdiction.
Termination due to disability shall be deemed to have occurred upon the first
day of the month following the determination of disability as defined in the
preceding sentence.
Anything herein to the contrary notwithstanding, if, following a
termination of employment hereunder due to disability as provided in the
preceding paragraph, the Employee becomes reemployed, whether as an Employee or
a consultant to the Company, any salary, annual incentive payments or other
benefits earned by the Employee from such employment shall offset any salary
continuation due to the Employee hereunder commencing with the date of
re-employment.
(c) TERMINATION BY THE COMPANY FOR CAUSE.
(i) Nothing herein shall prevent the Company from
terminating Employment for "Cause," as hereinafter defined. The Employee shall
continue to receive salary only for the period ending with the date of such
termination as provided in this Section 6(c). Any rights and benefits the
Employee may have in respect of any other compensation shall be determined in
accordance with the terms of such other compensation arrangements or such plans
or programs.
(ii) "Cause" shall mean and include those actions or events
specified below in subsections (A) through (E) to the extent the same occur, or
the events constituting the same take place, subsequent to the date of execution
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of this Agreement: (A) Committing or participating in an injurious act of fraud,
gross neglect or embezzlement against the Company; (B) committing or
participating in any other injurious act or omission wantonly, willful,
recklessly or in a manner which was grossly negligent against the Company,
monetarily or otherwise; (C) engaging in a criminal enterprise involving moral
turpitude; (D) conviction of an act or acts constituting a felony under the laws
of the United States or any state thereof; or (E) any assignment of this
Agreement by the Employee in violation of Section 14 of this Agreement. Anything
herein to the contrary notwithstanding, the employment of Employee shall not be
terminable by the Company for Cause if the grounds for such termination
includes, but is not limited to: (i) the result of bad judgment or poor economic
results on the part of the Employee, (ii) any act or omission believed by
Employee in good faith to have been in or not opposed to the interests of the
Company, or (iii) any act or omission in respect of which a determination could
properly be made that Employee met the applicable standard of conduct described
for indemnification or reimbursement or payment of expenses under the Articles
of Incorporation or Bylaws of the Company or the laws of the State of Florida or
the directors' and officers' liability insurance of the Company, in each case as
in effect at the time of such act or omission.
(iii) Notwithstanding anything else contained in this
Agreement, this Agreement will not be deemed to have been terminated for Cause
unless and until there shall have been delivered to the Employee a notice of
termination stating that the Employee committed one of the types of conduct set
forth in this Section 6(c) contained in this Agreement and specifying the
particulars thereof and the Employee shall be given a thirty (30) day period to
cure such conduct, if possible.
(d) TERMINATION BY THE COMPANY OTHER THAN FOR CAUSE.
(i) The foregoing notwithstanding, the Company may terminate
the Employee's employment for whatever reason it deems appropriate provided,
however, that in the event such termination is not based on cause, as provided
in Section 6(c) above, the Company may terminate this Agreement upon giving
three (3) months' prior written notice. During such three (3) month period, the
Employee shall continue to perform the Employee's duties pursuant to this
Agreement, and the Company shall continue to compensate the Employee in
accordance with this Agreement. The Employee will receive, at the Employee's
option either (A) a lump sum equal to the "Compensation and Benefits," as
hereinafter defined, for the remaining balance of the Term of this Agreement, at
the then current rate, reduced to present value, as set forth in Section 280G of
the Internal Revenue Code or (B) for the remaining balance of the Term or any
Renewal Term of this Agreement from and after the date of any such termination
and the Company shall on the last day of each calendar month pay to the Employee
such "Compensation and Benefits," which shall be an amount equal to (Y) one
hundred percent (100%) of the Employee's compensation and benefits set forth in
Section 5, which shall specifically include the Base Salary and Bonus, which
Bonus shall be payable on a pro-rata basis for the year in which the Employee's
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employment was terminated other than for cause (the "Compensation and
Benefits"), on the date of any such termination, divided by (Z) twelve (12);
provided however that if (A) there is a decrease in the Employee's Compensation
and Benefits, which specifically include the Employee's then Base Salary and
Bonus, for any reason other than the targets set forth in Section 5(b) are not
met, and (B) the Employee is terminated without cause, the Compensation and
Benefits shall be as existed immediately prior to such a decrease. The Employee
will be entitled to continued Compensation and Benefits coverage and credits as
provided in Section 5 or to reimbursement for the cost of providing the Employee
with comparable benefit coverage during the term in which the Employee is
receiving payments from the Company after termination pursuant to Section 6(d).
Such benefit coverage will not be offset by comparable coverage provided to the
Employee in connection with subsequent employment.
(ii) In the event the Employee's employment with the Company
is terminated pursuant to this Section 6(d), Section 6(f) or Section 6(g),
Section 7(a) of this Agreement and all references thereto shall be inapplicable
as to the Employee and the Company.
(iii) The foregoing notwithstanding, the Employee's employment
may not be terminated by the Company for any reason other than pursuant to
Section 6(a), Section 6(b) and/or Section 6(c) during the first three (3) years
of this Agreement.
(e) VOLUNTARY TERMINATION. In the event the Employee terminates
the Employee's employment on the Employee's own volition (except as provided in
Section 6(f) and/or Section 6(g) prior to the expiration of the Term or during
any Renewal Term of this Agreement, including any renewals thereof, such
termination shall constitute a voluntary termination and in such event the
Employee shall be limited to the same rights and benefits as provided in
connection with a termination for Cause as provided in Section 6(c).
(f) CONSTRUCTIVE TERMINATION OF EMPLOYMENT. If the Employee so
elects, a termination by the Company without Cause under Section 6(d) shall be
deemed to have occurred upon the occurrence of one or more of the following
events without the EXPRESS written consent of the Employee:
(i) a significant change in the nature or scope of the
authorities, powers, functions, duties or responsibilities attached to
Employee's position as described in Section 3; or
(ii) five percent (5%) reduction in the Employee's base
salary or any change in the method of calculating Employee's Bonus Compensation
hereunder which would be detrimental to Employee in any respect; or
(iii) a material breach of the Agreement by the Company; or
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(iv) a material reduction of the Employee's benefits under
any employee benefit plan, program or arrangement (for Employee individually or
as part of a group) of the Company as then in effect or as in effect on the
Effective Date of the Agreement, which reduction shall not be effectuated for
similarly situated employees of the Company; or
(v) failure by a successor company to assume the obligations
under this Agreement.
(vi) a change in the Executive principal office to a location
outside the Broward and Palm Beach County, Florida area.
Anything herein to the contrary notwithstanding, the Employee shall give written
notice to the Board of Directors of the Company that the Employee believes an
event has occurred which would result in a Constructive Termination of the
Employee's employment under this Section 6(f), which written notice shall
specify the particular act or acts, on the basis of which the Employee intends
to so terminate the Employee's employment, and the Company shall then be given
the opportunity, within fifteen (15) days of its receipt of such notice to cure
said event, provided, however, there shall be no time period permitted to cure a
second or subsequent occurrence under this Section 6(f) (whether such second
occurrence be of the same or a different event specified in subsections (i)
through (v) above).
(g) TERMINATION FOLLOWING A CHANGE OF CONTROL.
(i) In the event that a "Change in Control" or an "Attempted
Change in Control" as hereinafter defined, of the Company shall occur at any
time during the Term hereof, the Employee shall have the right to terminate the
Employee's employment under this Agreement upon thirty (30) days written notice
given at any time within one year after the occurrence of such event, and such
termination of the Employee's employment with the Company pursuant to this
Section 6(g)(i), then, in any such event, such termination shall be deemed to be
a Termination by the Company Other than for Cause and the Employee shall be
entitled to such Compensation and Benefits as set forth in Subsection 6(d) of
this Agreement.
(ii) For purposes of this Agreement, a "Change in Control" of
the Company shall mean a change in control (A) as set forth in Section 280G of
the Internal Revenue Code or (B) of a nature that would be required to be
reported in response to Item 1 of the current report on Form 8K, as in effect on
the date hereof, pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 0000 (xxx "Xxxxxxxx Xxx"); provided that, without limitation, such a change
in control shall be deemed to have occurred at such time as:
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(A) any "person", other than the Employee, (as such
term is used in Section 13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing fifty percent (50%) or
more of the combined voting power of the Company's outstanding securities then
having the right to vote at elections of directors; or,
(B) the individuals who at the commencement date of
the Agreement constitute the Board of Directors cease for any reason to
constitute a majority thereof unless the election, or nomination for election,
of each new director was approved by a vote of at least two thirds of the
directors then in office who were directors at the commencement of the
Agreement; or
(C) there is a failure to elect four or more (or such
number of directors as would constitute a majority of the Board of Directors
(candidates nominated by management of the Company to the Board of Directors; or
(D) the business of the Company for which the
Employee's services are principally performed is disposed of by the Company
pursuant to a partial or complete liquidation of the Company, a sale of assets
(including stock of a subsidiary of the Company) or otherwise.
Anything herein to the contrary notwithstanding, this Section 6(g)(ii) will not
apply where the Employee gives the Employee's explicit written waiver stating
that for the purposes of this Section 6(g)(ii) a Change in Control shall not be
deemed to have occurred. The Employee's participation in any negotiations or
other matters in relation to a Change in Control shall in no way constitute such
a waiver which can only be given by an explicit written waiver as provided in
the preceding sentence.
An "Attempted Change in Control" shall be deemed to have occurred if
any substantial attempt, accompanied by significant work efforts and
expenditures of money, is made to accomplish a Change in Control, as described
in subparagraphs (A), (B), (C) or (D) above whether or not such attempt is made
with the approval of a majority of the then current members of the Board of
Directors.
(iii) In the event that, within twelve (12) months of any
Change in Control of the Company or any Attempted Change in Control of the
Company, the Company terminates the employment of the Employee under this
Agreement, for any reason other than for Cause as defined in Section 6(c), or
the Employee's employment is constructively terminated as defined in Section
6(g)(iv), then, in any such event, such termination shall be deemed to be a
Termination by the Company Other than for Cause and the Employee shall e
entitled to such Compensation and Benefits as set forth in Subsection 6(d) of
this Agreement.
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(iv) For purposes of this Section 6(g), the Employee's
employment shall be deemed constructively terminated in the event one or more of
the following events occurs without the express written consent of the Employee:
(A) Significant change in the nature or scope of the
authorities, powers, functions, duties or responsibilities attached to
Employee's position as described in Section 3; or
(B) A five percent (5%) reduction in the Employee's
salary below the salary in effect immediately prior to such reduction or a
reduction in the target bonus participation under Section 5(d) as a percentage
of salary; or
(C) Material breach of the Agreement by the Company;
or
(D) Material reduction of the Employee's benefits
under any employee benefit plan, program or arrangement (for Employee
individually or as part of a group) of the Company as then in effect or as in
effect on the effective date or the Agreement, which reduction shall not be
effectuated for similarly situated employees of the Company; or
(E) Failure by a successor company to assume the
obligations under the Agreement; or
(F) Change in the Employee's principal office to a
location outside the Palm Beach-Broward County, Florida area.
(v) Anything in this Section 6(g) to the contrary
notwithstanding, in no event will any action or non-action by the Employee at
any time prior to the first anniversary date of the applicable Change in Control
or Attempted Change in Control (including any action or non-action prior to the
effective date of this Agreement) be deemed consent to any of the events
described in this Section 6(g).
(vi) Anything herein to the contrary notwithstanding, in the
event the circumstances giving rise to an Attempted Change in Control are
included in those circumstances giving rise to an actual Change in Control the
twelve (12) month period under this Section 6 will be deemed to have recommenced
on the date the actual Change in Control occurred.
7. COVENANT NOT TO COMPETE AND NON-DISCLOSURE OF INFORMATION.
(a) COVENANT NOT TO COMPETE. Except as set forth in Section
6(d)(ii) of this Agreement, the Employee acknowledges and recognizes the highly
competitive nature of the Company's business and the goodwill, continued
patronage, and specifically the names and addresses of the Company's Clients (as
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hereinafter defined) constitute a substantial asset of the Company having been
acquired through considerable time, money and effort. Accordingly, in
consideration of the execution of this Agreement, the Employee agrees to the
following:
(i) That during the Restricted Period (as hereinafter
defined) and within the Restricted Area (as hereinafter defined), the Employee
will not, individually or in conjunction with others, directly or indirectly,
engage in any Business Activities (as hereinafter defined), whether as an
officer, director, proprietor, employer, partner, independent contractor,
investor (other than as a holder solely as an investment of less than 1% of the
outstanding capital stock of a publicly traded corporation), consultant,
advisor, agent or otherwise.
(ii) That during the Restricted Period and within the
Restricted Area, the Employee will not, directly or indirectly, compete with the
Company by soliciting, inducing or influencing any of the Company's clients
which have a business relationship with the Company at the time during the
Restricted Period to discontinue or reduce the extent of such relationship with
the Company.
(iii) That during the Restricted Period and within the
Restricted Area, the Employee will not (A) directly or indirectly recruit,
solicit or otherwise influence any employee or agent of the Company to
discontinue such employment or agency relationship with the Company, or (B)
employ or seek to employ, or cause or permit any business which competes
directly or indirectly with the Business Activities of the Company (the
"Competitive Business") to employ or seek to employ for any Competitive Business
any person who is then (or was at any time within six (6) months prior to the
date Employee or the Competitive Business employs or seeks to employ such
person) employed by the Company.
(iv) That during the Restricted Period the Employee will not
interfere with, or disrupt or attempt to disrupt any past, present or
prospective relationship, contractual or otherwise, between the Company and any
customer, employee or agent of the Company.
(b) NON-DISCLOSURE OF INFORMATION. The Employee acknowledges that
the Company's trade secrets, private or secret processes, methods and ideas, as
they exist from time to time, customer lists and information concerning the
Company's products, services, training methods, developments, technical
information, marketing activities and procedures, credit and financial data
concerning the Company and/or the Company's Clients, and (the "Proprietary
Information") are valuable, special and unique assets of the Company, access to
and knowledge of which are essential to the performance of the Employee
hereunder. In light of the highly competitive nature of the industry in which
the Company's business is conducted, the Employee agrees that all Proprietary
Information, heretofore or in the future obtained by the Employee as a result of
the Employee's association with the Company shall be considered confidential.
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In recognition of this fact, the Employee agrees that the Employee, during
the Restricted Period, will not use or disclose any of such Proprietary
Information for the Employee's own purposes or for the benefit of any person or
other entity or organization (except the Company) under any circumstances unless
such Proprietary Information has been publicly disclosed generally or, unless
upon written advice of legal counsel reasonably satisfactory to the Company, the
Employee is legally required to disclose such Proprietary Information. Documents
(as hereinafter defined) prepared by the Employee or that come into the
Employee's possession during the Employee's association with the Company are and
remain the property of the Company, and when this Agreement terminates, such
Documents shall be returned to the Company at the Company's principal place of
business, as provided in the Notice provision (Section 10) of this Agreement.
(c) DOCUMENTS. "Documents" shall mean all original written,
recorded, or graphic matters whatsoever, and any and all copies thereof,
including, but not limited to: papers; books; records; tangible things;
correspondence; communications; telex messages; memoranda; work-papers; reports;
affidavits; statements; summaries; analyses; evaluations; client records and
information; agreements; agendas; advertisements; instructions; charges;
manuals; brochures; publications; directories; industry lists; schedules; price
lists; client lists; statistical records; training manuals; computer printouts;
books of account, records and invoices reflecting business operations; all
things similar to any of the foregoing however denominated. In all cases where
originals are not available, the term "Documents" shall also mean identical
copies of original documents or non-identical copies thereof.
(d) COMPANY'S CLIENTS. The "Company's Clients" shall be deemed to
be any persons, partnerships, corporations, professional associations or other
organizations for whom the Company has performed Business Activities.
(e) RESTRICTIVE PERIOD. The "Restrictive Period" shall be deemed
to be during the Term or Renewal Term of this Agreement and for a period of
twelve (12) months following termination of this Agreement.
(f) RESTRICTED AREA. The Restricted Area shall be deemed to mean
any county of any state in which the Company is providing service at the time of
termination.
(g) BUSINESS ACTIVITIES. "Business Activities" shall be deemed to
include any business activities concerning consulting, pharmaceutical and
accounting services to nursing homes and assisted living residents provided by
the Company and any additional activities which the Company or any of its
affiliates may engage in during the term of this Agreement.
(h) COVENANTS AS ESSENTIAL ELEMENTS OF THIS AGREEMENT. It is
understood by and between the parties hereto that the foregoing covenants
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contained in Sections 7(a) and (b) are essential elements of this Agreement, and
that but for the agreement by the Employee to comply with such covenants, the
Company would not have agreed to enter into this Agreement. Such covenants by
the Employee shall be construed to be agreements independent of any other
provisions of this Agreement. The existence of any other claim or cause of
action, whether predicated on any other provision in this Agreement, or
otherwise, as a result of the relationship between the parties shall not
constitute a defense to the enforcement of such covenants against the Employee.
(i) SURVIVAL AFTER TERMINATION OF AGREEMENT. Notwithstanding
anything to the contrary contained in this Agreement, the covenants in Sections
7(a) and (b) shall survive the termination of this Agreement and the Employee's
employment with the Company.
(j) REMEDIES.
(i) The Employee acknowledges and agrees that the Company's
remedy at law for a breach or threatened breach of any of the provisions of
Section 7(a) or (b) herein would be inadequate and the breach shall be per se
deemed as causing irreparable harm to the Company. In recognition of this fact,
in the event of a breach by the Employee of any of the provisions of Section
7(a) or (b), the Employee agrees that, in addition to any remedy at law
available to the Company, including, but not limited to monetary damages, all
rights of the Employee to payment or otherwise under this Agreement and all
amounts then or thereafter due to the Employee from the Company under this
Agreement may be terminated and the Company, without posting any bond, shall be
entitled to obtain, and the Employee agrees not to oppose the Company's request
for equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction or any other equitable remedy which may
then be available to the Company.
(ii) The Employee acknowledges that the granting of a
temporary injunction, temporary restraining order or permanent injunction merely
prohibiting the use of Proprietary Information would not be an adequate remedy
upon breach or threatened breach of Section 7(a) or (b) and consequently agrees,
upon proof of any such breach, to the granting of injunctive relief prohibiting
any form of competition with the Company. Nothing herein contained shall be
construed as prohibiting the Company from pursuing any other remedies available
to it for such breach or threatened breach.
8. INDEMNIFICATION. The Employee shall continue to be covered by the
Articles of Incorporation and/or the Bylaws of the Company with respect to
matters occurring on or prior to the date of termination of the Employee's
employment with the Company, subject to all provisions of Florida and Federal
law and the Articles of Incorporation and Bylaws of the Company then in effect.
Such reasonable expenses, including attorneys' fees, that may be covered by the
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Articles of Incorporation and/or Bylaws of the Company shall be paid by the
Company on a current basis in accordance with such provision, the Company's
Articles of Incorporation and Florida law. To the extent that any such payments
by the Company pursuant to the Company Articles of Incorporation and/or Bylaws
may be subject to repayment by the Employee pursuant to the provisions of the
Company's Articles of Incorporation or Bylaws, or pursuant to Florida or Federal
law, such repayment shall be due and payable by the Employee to the Company
within twelve (12) months after the termination of all proceedings, if any,
which relate to such repayment and to the Company's affairs for the period prior
to the date of termination of the Employee's employment with the Company and as
to which Employee has been covered by such applicable provisions.
9. WITHHOLDING. Anything to the contrary notwithstanding, all payments
required to be made by the Company hereunder to the Employee or the Employee's
estate or beneficiaries shall be subject to the withholding of such amounts, if
any, relating to tax and other payroll deductions as the Company may reasonably
determine it should withhold pursuant to any applicable law or regulation. In
lieu of withholding such amounts, the Company may accept other arrangements
pursuant to which it is satisfied that such tax and other payroll obligations
will be satisfied in a manner complying with applicable law or regulation.
10. NOTICES. Any notice required or permitted to be given under the
terms of this Agreement shall be sufficient if in writing and if sent postage
prepaid by registered or certified mail, return receipt requested; by overnight
delivery; by courier; or by confirmed telecopy, in the case of the Employee to
the Employee's last place of business or residence as shown on the records of
the Company, or in the case of the Company to its principal office as set forth
in the first paragraph of this Agreement, or at such other place as it may
designate.
11. WAIVER. Unless agreed in writing, the failure of either party, at
any time, to require performance by the other of any provisions hereunder shall
not affect its right thereafter to enforce the same, nor shall a waiver by
either party of any breach of any provision hereof be taken or held to be a
waiver of any other preceding or succeeding breach of any term or provision of
this Agreement. No extension of time for the performance of any obligation or
act shall be deemed to be an extension of time for the performance of any other
obligation or act hereunder.
12. COMPLETENESS AND MODIFICATION. This Agreement constitutes the entire
understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the Employment Agreement. This Agreement may be amended, modified, superseded or
canceled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by the
parties or, in the case of a waiver, by the party to be charged.
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13. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute but one agreement.
14. BINDING EFFECT/ASSIGNMENT. This Agreement shall be binding upon the
parties hereto, their heirs, legal representatives, successors and assigns. This
Agreement shall not be assignable by the Employee but shall be assignable by the
Company in connection with the sale, transfer or other disposition of its
business or to any of the Company affiliates controlled by or under common
control with the Company.
15. GOVERNING LAW. This Agreement shall become valid when executed and
accepted by Company. The parties agree that it shall be deemed made and entered
into in the State of Florida and shall be governed and construed under and in
accordance with the laws of the State of Florida. Anything in this Agreement to
the contrary notwithstanding, the Employee shall conduct the Employee's business
in a lawful manner and faithfully comply with applicable laws or regulations of
the state, city or other political subdivision in which the Employee is located.
16. FURTHER ASSURANCES. All parties hereto shall execute and deliver
such other instruments and do such other acts as may be necessary to carry out
the intent and purposes of this Agreement.
17. HEADINGS.. The headings of the sections are for convenience only and
shall not control or affect the meaning or construction or limit the scope or
intent of any of the provisions of this Agreement.
18. SURVIVAL. Any termination of this Agreement shall not, however,
affect the ongoing provisions of this Agreement which shall survive such
termination in accordance with their terms.
19. SEVERABILITY. The invalidity or unenforceability, in whole or in
part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase or word or of any provision of this
Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
20. ENFORCEMENT. Should it become necessary for any party to institute
legal action to enforce the terms and conditions of this Agreement, the
successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs.
21. VENUE. Company and Employee acknowledge and agree that the U.S.
District for the Southern District of Florida, or if such court lacks
jurisdiction, the 15th Judicial Circuit (or its successor) in and for Palm Beach
County, Florida, shall be the venue and exclusive proper forum in which to
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adjudicate any case or controversy arising either, directly or indirectly, under
or in connection with this Agreement and the parties further agree that, in the
event of litigation arising out of or in connection with this Agreement in these
courts, they will not contest or challenge the jurisdiction or venue of these
courts.
22. CONSTRUCTION. This Agreement shall be construed within the fair
meaning of each of its terms and not against the party drafting the document.
THE EMPLOYEE ACKNOWLEDGES THAT THE EMPLOYEE HAS READ ALL OF THE TERMS OF THIS
AGREEMENT, UNDERSTANDS THE AGREEMENT, AND AGREES TO ABIDE BY ITS TERMS AND
CONDITIONS.
IN WITNESS WHEREOF, the parties have executed this Agreement as of date
set forth in the first paragraph of this Agreement.
THE COMPANY:
QPQ Corporation
By: /S/ Xxxxxx Xxxxxxx
-------------------
Xxxxxx Xxxxxxx
THE EMPLOYEE:
/s/ C. Xxxxxxxx Xxxxxxxx
-------------------------
C. Xxxxxxxx Xxxxxxxx
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