[EXHIBIT 10.9]
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is made this 1st day of October, 2001 by and
between SDC INTERNATIONAL INC., a Delaware corporation (the "Company"),
and Xxxxxx K. Srkal (the "Executive"). This Agreement shall be
effective upon the Closing Date of the acquisition of Tatra a.s. by the
Company (the "Effective Date").
RECITALS:
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A. The Company is engaged in the business of manufacturing,
trade and finance.
B. The Executive has particular skills, knowledge and experience
in acquisitions, marketing, sales and operations for which the Company
has an acute need.
C. The Executive has served as President of the Company.
D. The Company desires to provide for the continued service and
employment of the Executive with the Company and the Executive wishes to
continue to perform services for the Company, all in accordance with the
terms and conditions provided herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, it is mutually covenanted,
and agreed by and between the parties as follows:
I. EMPLOYMENT
During the Term (as defined below) the Executive shall continue to
serve the Company as President and the Executive accepts such employment
upon the terms and conditions set forth in this Agreement and agrees to
perform the duties required of him to the best of his ability. The
Executive shall have such duties and responsibilities as are customary
with a company of the size and type of Company. Executive shall report
solely to the Board of Directors of the Company.
II. TERM OF EMPLOYMENT, POSITION AND DUTIES
A. Except as otherwise provided in Section XI hereof, the term of
this Agreement (the "Term") shall be a continuous three year period
commencing on the Effective Date and continuing for a period such that
on each "Anniversary Date", as defined below, an additional year
automatically shall be added. At any time during the 60-day period
prior to any Anniversary Date, either party may provide written notice,
with or without cause, to the other party of that party's intention not
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to extend the Term of this Agreement beyond the number of years then
remaining in the Term, which number shall always be three. Such written
notice shall be deemed the notice to terminate this Agreement at the end
of the three-year term then in effect. The "Anniversary Date," as used
herein, shall be the anniversary date of the Effective Date of each year
during the Term, including each year beyond the first three years of the
Term. It is the intention of the parties that the Term as of each
Anniversary Date automatically shall be three years, that three years'
written notice shall be required to terminate this Agreement except as
otherwise provided in Section XI hereof and that said written notice to
terminate may only be given during the 60-day period prior to any
Anniversary Date.
B. Consistent with its obligations to stockholders, Company
agrees to use its best efforts to procure the election of Executive as
a member of the Board and to ensure Executive's re-election to that
position.
C. In connection with the Executive's employment by the
Company, the Executive shall be based at the principal executive
offices of the Company in the town of Palm Beach and/or the city of
Fort Lauderdale, Florida, except for travel as reasonably required in
connection with the performance of the Executive's duties hereunder.
III. COMPENSATION
A. Base Salary. For all services rendered by the Executive
under this Agreement, the Company shall pay the Executive an annual base
salary of $300,000 ("Base Salary"). The Base Salary shall be increased
(but may not be decreased) each year in an amount to be determined by
the Board of Directors, but in an amount no less than the increase in
the Consumer Price Index for the prior year. The term "Consumer Price
Index" means the Consumer Price Index, All Urban Consumers, All Items,
Xxxxx/Xx. Xxxxxxxxxx, Xxxxxxx, 0000-0000x000.
B. Bonus. Executive shall be entitled to additional
compensation, the amount of which shall be dependent upon the revenues
and net profits of Tatra, a.s. The Board of Directors of the Company
shall determine the amount of such bonus and the revenue and net profits
targets upon which the Executive's bonus shall be based. The Board of
Directors shall advise the Executive, in writing, of the formula and
targets within one week after the meeting at which they were determined.
The annual bonus, if any, shall be payable as soon as reasonably
practicable after the completion of Company's audited financial
statements for such calendar year, but in no event later than 100 days
after the end of the calendar year.
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IV. FRINGE BENEFITS
A. Executive shall be entitled to receive an automobile
allowance of $750 per month.
B. Executive shall be covered under any group medical, dental
and optical insurance (including family coverage for dependants), full
and partial disability insurance, medical reimbursement plans, life
insurance and other benefit plans of the Company. If the Company does
not maintain each of the above described plans, then the Executive may
obtain such plans, the cost of which shall be paid by the Company. The
Company shall also provide for an annual executive physical for the
Executive at the expense of the Company.
C. Company shall pay for $2 million of face amount of life
insurance on the life of the Executive, and Executive may name the
beneficiary of said policy.
D. Company shall pay to Executive an allowance of $12,000 per
year for non-accountable expense items incurred by Executive.
E. Company will pay to Executive any amounts of income taxes due
from the payments provided for in this Agreement which Executive must
pay to foreign governments which are in excess of those income taxes
Executive would pay to the United States government had Executive been
located within the United States.
F. Company will pay for a full 100% Short and Long Term
Disability Insurance Policy for the benefit of Executive.
G. During the term, Executive shall be eligible to receive
grants of options to purchase shares of Company's stock and awards of
shares of Company's stock, either or both as determined by the Board,
under and in accordance with the terms of applicable plans of Company,
if any, and related option and award agreements, if any. Executive shall
also be entitled to participate in any equity programs of Subsidiaries
or Affiliates upon such terms and conditions as may be established by
the Board.
H. Notwithstanding those provisions contained in this Section
IV, during the term Executive shall be entitled to participate in all
savings/retirement plans that are applicable to Company employees
generally or the senior executives of Company.
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V. STOCK RIGHTS
A. The Company grants to the Executive an option to purchase
1,582,250 shares of the Company's common stock. The option granted
hereby shall be evidenced by a separate written stock option agreement
between the Company and the Executive. The option may be exercised, in
whole or in part, at any time and from time to time for a period of ten
years at a purchase price of $0.10 per share and the Executive will have
the right to exercise the option on a cashless basis . The stock to
which Executive has an option to purchase shall be referred to as the
"Option Stock."
B. Company has advised Executive that it proposes to register
additional shares of its common stock under the appropriate state and
Federal securities laws. Upon any such registration, Company agrees to
use its best efforts to cause to be included in such registration the
Option Stock subject to Executive's option under this Agreement.
VI. EXPENSES
Company shall reimburse Executive for all reasonable and necessary
expenses incurred and paid by Executive in the course of his employment
from time to time consistent with Company's policies and practices then
in effect with respect to business expenses and subject to Company's
requirements with respect to reporting such expenses. The Company shall
also reimburse the Executive for professional license fees, dues for
professional organizations, and legal fees for representation of the
Executive with respect to this agreement or other employment related
matters.
VII. DUTIES AND AUTHORITY
The President shall be the Chief Operating Officer and shall
undertake the general and active management of the affairs of the
Company subject to the direction of the Board of Directors. The
Executive's other duties shall be such as the Board of Directors may
from time to time reasonably direct in keeping with the particular
skills, knowledge and experience of the Executive. The Executive,
together with the Chairman of the Board of the Company, shall be
entitled to direct the business and affairs of the Company (subject to
the rights and obligations of the Company's Board of Directors), and the
approval of the Executive shall be required to effect any of the
following:
(a) Approval of annual budgets;
(b) Approval of all capital expenditures in excess of $25,000 per
item or $50,000 for related items;
(c) Approval of all mergers, acquisitions, divestitures,
reorganizations and similar extraordinary corporate events;
(d) Sales of capital stock;
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(e) Stock splits, stock dividends and similar transactions
affecting the capital stock of the Company; and
(f) Any amendment to the Certificate of Incorporation or
By-Laws of the Company.
VIII. EXTENT OF SERVICES
The Executive shall devote his time, attention, and energies to
the business of the Company, and shall not during the term of this
Agreement be engaged in the same business as that of the Company except
as an Executive of the Company. This provision shall not be construed
as preventing the Executive from spending a reasonable time pursuing
independent business activities and investing, provided such activities
do not unreasonably interfere with the Executive's duties under this
Agreement.
IX. FACILITIES
The Company shall provide and maintain such facilities, equipment,
supplies and personnel as are necessary for the Executive's performance
of his duties under this Agreement.
X. VACATIONS
The Executive shall be entitled to a vacation of four weeks each
year. If Executive does not use all of his vacation in a given year, he
may elect to either accumulate up to a maximum of eight weeks or be paid
of any unused, unaccumulated vacation time.
XI. TERMINATION
A. Voluntary Termination. This Agreement may be terminated by:
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1. the Executive giving 90 days notice of termination to
the Company; or
2. mutual consent of the parties at any time.
B. Involuntary Termination. This Agreement shall be terminated:
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1. upon death of the Executive;
2. upon Disability of the Executive; or
3. for Cause.
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For purposes of this Section, "Disability" shall mean the
Executive's inability due to accident or illness to perform the duties
of his employment for a period of 180 consecutive days. Provided,
however, if the physician treating the Executive is of the opinion that
the disability of the Executive will last at least 180 days, the Company
shall have the option of terminating the Executive's employment
immediately upon receipt of the written opinion from the Executive's
physician. For purposes of this Section, the term "Cause" shall be
limited to: (i) refusal to perform Executive's obligations under this
Agreement; (ii) addiction to the use of intoxicants or narcotics; or
(iii) conviction of a felony. A termination for Cause pursuant to
clause (i) of this Section shall not take effect unless the following
provisions of this paragraph are complied with. The Executive shall be
given written notice by the Board of its intention to terminate him for
Cause. Such notice shall (A) state in detail the particular act or acts
or failure or failures to act that constitute the grounds on which the
proposed termination for Cause is based and (B) be given within three
months of the Board learning of such act or acts or failure or failures
to act. The Executive shall have 30 days after the date that such
written notice has been received by the Executive to cure such conduct,
to the extent such cure is possible. If he fails to cure such conduct,
the Executive shall then be entitled to a hearing before the Board.
Such hearing shall be held within 15 days of such notice to the
Executive, provided he requests such hearing within ten days of the
written notice from the Board of the intention to terminate him for
Cause. If, within five days following such hearing, the Board provides
the Executive with written notice confirming that, in its judgment,
grounds exist for termination for Cause on the basis of the original
notice, the Executive shall thereupon be terminated for Cause.
C. If the Executive's employment is terminated for any
reason, he, his heirs or assigns shall be entitled to receive his normal
compensation through the date of such termination, plus such additional
amounts as may be required by this Agreement. In addition, if the
Executive's employment is terminated by reason of the Executive's death
or Disability, by the Company for Cause or voluntarily by the Executive
other than upon a Constructive Termination (as defined below), (i) the
Company shall, as soon as practicable after the date of termination, pay
the Executive (or the Executive's beneficiary, as the case may be) all
unpaid amounts, if any, to which the Executive is entitled as of the
Date of Termination under Section III hereof and shall pay to the
Executive, in accordance with the terms of the applicable plan or
program, all other unpaid amounts to which Executive is then entitled
under any compensation or benefit plan or program of the Company,
including, without limitation, benefits provided in accordance with the
provisions of Section IV hereof, and (ii) the Executive's entitlements
in respect of stock options, share units and any other long-term
incentive awards which are outstanding as of the date of termination
shall be as provided for in the respective agreements setting forth the
terms and conditions of each award, it being specifically understood
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that any unvested awards shall, upon termination of the Executive's
employment by reason of the Executive's death or Disability, by the
Company for Cause or voluntarily by the Executive other than upon a
Constructive Termination, be forfeited as of the date of termination
(the matters referred to in clauses (i) and (ii) above being referred to
herein collectively as "Accrued Obligations"). In addition, if the
Executive's employment is terminated by reason of the Executive's death
or Disability, then the Company shall, at the same time that annual
incentive awards are paid to senior level executives of the Company for
the year in which the Executive's employment so terminates, pay the
Executive (or the Executive's beneficiary, as the case may be) an amount
(the "Pro Rata Bonus Amount") equal to (x) the target bonus for the
Executive for the annual period of the then-prevailing Term multiplied
by a fraction, the numerator of which equals the number of days during
which the Executive has been employed in such prevailing Term through
and including the Date of Termination, and the denominator of which
equals 365, minus (y) any bonus amounts paid or payable with respect to
the Executive for such year under any annual bonus or incentive
compensation plan or program maintained by the Company. Upon
satisfaction of the Accrued Obligations, the Company shall have no
further obligations to the Executive under this Agreement, other than
those obligations that by their nature are intended to extend beyond the
termination of the Executive's employment hereunder and as specifically
provided by this Agreement.
D. Constructive Termination.
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1. If the Company:
(i) terminates the employment of Executive other than
for Cause;
(ii) causes a demotion or a material diminution in the
Executive's duties or the assignment to the
Executive of duties that are materially
inconsistent with his position or that materially
impair the Executive's ability to function as the
President of the Company, except for Cause or due
to Disability;,
(iii) takes any action inconsistent with the authority,
approval rights and duties designated to the
Executive hereunder,
(iv) decreases Executive's Base Salary
below the level provided in Section III.a. or
reduces the employee benefits and perquisites
below the levels provided in Article IV (other
than as a result of any amendment or termination
of any employee and/or group or senior executive
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benefit plan, which amendment or termination is
applicable to all executives of the Company),
(v) reduces the Executive's "annual total cash
compensation" by more than 20%. For purposes of
this provision, "annual total cash compensation"
means the sum of the (x) Base Salary plus (y)
target bonus for the prevailing year;
(vi) fails to elect the Executive to the Company's
Board of Directors;
(vii) relocates the Company's principal office, or
the Executive's own office location as assigned to
him by the Company, to a location more than 25
miles from the Company's current executive offices
in the town of Palm Beach and/or the city of Fort
Lauderdale, Florida;
(viii) materially fails to comply with a material
provision of this Agreement; or
(ix) following a "Change of Control of the Company"
(as defined below), does not immediately and
affirmatively agree to extend this Agreement for
at least an additional three years beyond the date
of the Change of Control and as a result the term
of this agreement terminates prior to a date that
is three years following the date of the Change of
Control of the Company,
then, such action by the Company, unless consented to in writing by
Executive, shall be deemed to be a constructive termination by the
Company of Executive's employment ("Constructive Termination").
2. In the event of a Constructive Termination other than a
Constructive Termination following a Change in Control of the Company,
Executive shall be entitled to receive, in one lump sum an amount
equivalent to Executive's cumulative Base Salary for the 36 months
immediately prior to the date of the Constructive Termination (or if
Executive has not been employed for three years then 300% of his annual
base salary on the date of termination), plus three times the amount of
the Executive's bonus (the "Bonus Termination Payment"), if any, for the
previous year, payable within 30 days of the date of the Constructive
Termination; provided, that, at the option of the Executive, if such
termination shall occur during the first year of the Term, then the
amount of the Bonus for purposes of this Article XI shall be calculated
within 15 days following completion of the Company's audited financial
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statements based upon the formula referred to in Article III hereof, and
the Bonus Termination Payment shall be paid to the Executive within five
(5) days following such calculation. In addition, upon such
termination, all options to purchase shares of the Company's common
stock shall accelerate and become immediately exercisable.
3. In the event of a Constructive Termination following a
Change of Control of the Company, Executive shall be entitled to a
payment within 30 days of the date of Constructive Termination in an
aggregate amount equal to the sum of the following:
(i) an amount equivalent to 300% of Executive's
annual Base Salary as of the date of Constructive
Termination;
(ii) an amount equivalent to 300% of the greater of
(i) the bonuses received by Executive during the 12
months immediately prior to the date of Constructive
Termination or (ii) the average of the annual bonuses
received by Executive in respect of employment during
the 2-year period preceding the year in which the
Change of Control occurred; provided, that, at the
option of the Executive, in the event of a Constructive
Termination following a Change of Control of the
Company during the first year of the Term, then the
amount of the annual bonus for purposes of this Section
shall be calculated within 15 days following completion
of the Company's audited financial statements based
upon the formula referred to in Article III hereof, and
the payment required to be made by this Section shall
be made to the Executive within five (5) days following
such calculation;
(iii) an amount in cash (payable within 10 days after
the date of Constructive Termination) equal to the
present value (calculated at a discount rate of 8%) of
the incremental retirement benefits (including, without
limitation, any pension, retiree life or retiree
medical benefits) that would have been payable or
available to Executive under any qualified plan, or
under any other supplemental retirement, life or
medical plan or arrangement, regardless of whether
qualified, that is maintained by the Company and is
based on the age and service Executive would have
attained or completed had Executive continued as an
employee of the Company for an additional two years; and
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(iv) all options that have not theretofore vested to
purchase shares of the Company's common stock shall
accelerate and become immediately exercisable.
4. The provisions of Section 3 with respect to the timing
and amounts of payments to be made in the event of a Constructive
Termination following a Change of Control of the Company shall be
controlling over any contrary or inconsistent provisions contained in
any employee and/or group or senior executive benefit plans and programs
of the Company. In the event of the death of Executive, the amounts set
forth in this Article shall continue to be owing and shall be paid to
the estate of Executive.
5. In the event that Executive becomes entitled to the
payment under Sections 3 or 4 ("a "Termination Payment"), if any of the
Termination Payment will be subject to the tax (the "Excise Tax")
imposed by Section 4999 of the Internal Revenue Code of 1986 (the
"Code"), the Company shall pay to Executive an additional amount (the
"Gross-Up Payment") such that the net amount retained by Executive,
after deduction of any Excise Tax on the Termination Payment and any
federal, state and local income tax and Excise Tax upon the payment
provided for by this paragraph, shall be equal to the Termination
Payment. For purposes of determining whether any of the Termination
Payment will be subject to the Excise Tax and the amount of such Excise
Tax, (i) any other payments or benefits received or to be received by
Executive in connection with the Change in Control of the Company or the
Constructive Termination of Executive (whether pursuant to the terms of
this Agreement or any other plan, arrangement or agreement with the
Company, any person whose actions result in a change in control or any
person affiliated with the Company or such person) shall be treated as
"parachute payments" within the meaning of Section 280G(b)(2) of the
Code, and all "excess parachute payments" within the meaning of Section
280G(b)(1) shall be treated as subject to the Excise Tax, unless in the
opinion of tax counsel selected by the Company and acceptable to
Executive such other payments or benefits (in whole or in part) do not
constitute parachute payments, or such excess parachute payments (in
whole or in part) represent reasonable compensation for services
actually rendered within the meaning of Section 280G(b)(4) of the Code,
(ii) the amount of the Termination Payment which shall be treated as
subject to the Excise Tax shall be equal to the lesser of (A) the total
amount of the Termination Payment or (B) the amount of excess parachute
payments within the meaning of Sections 280G(b)(1) and (4) after
applying clause (i) above, and (iii) the value of any non-cash benefits
or any deferred payment or benefit shall be determined by the Company's
independent auditors in accordance with the principles of Sections
280G(d)(3) and (4) of the Code. For purposes of determining the amount
of the Gross-Up Payment, Executive shall be deemed to pay federal income
taxes at the highest marginal rate of federal income taxation in the
calendar year in which the Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rates of taxation in the
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state and locality of Executive's residence on the date of Constructive
Termination, net of the maximum reduction in federal income taxes which
could be obtained from deduction of such state and local taxes. In the
event that the Excise Tax is subsequently determined to be less than the
amount taken into account hereunder at the time of the Constructive
Termination of Executive's employment, Executive shall repay to the
Company at the time that amount of such reduction in Excise Tax is
finally determined the portion of the Gross-Up Payment attributable to
such reduction plus interest on the amount of such repayment at the rate
provided in Section 1274(b)(2)(B) of the Code. In the event that the
Excise Tax is determined to exceed the amount taken into account
hereunder at the time of the Constructive Termination of Executive's
employment (including by reason of any payment the existence or amount
of which cannot be determined at the time of the Gross-Up Payment), the
Company shall make an additional gross-up payment in respect of such
excess (plus any interest payable with respect to such excess) at the
time that the amount of such excess is finally determined.
6. In the event of a Constructive Termination described
above, unless otherwise indicated, all other rights and benefits
Executive may have under the employee and/or group or senior executive
benefit plans and programs of the Company, generally, (including without
limitation, automobile, vacation, one office within the offices of
Company, and pension benefits, if applicable) shall be continued in full
for the three years after termination or until Executive becomes
eligible for substantially similar benefits, plans and programs of a new
employer, whichever occurs earlier. Further, continuing coverage under
the life, disability, accident and health insurance programs for Company
employees generally and under any supplemental programs covering Company
employees, as from time to time in effect, for the three year period
from such termination or until Executive becomes eligible for
substantially similar coverage under the employee welfare plans of a new
employer, whichever occurs earlier, provided that Executive's right to
elect continued medical coverage after termination of employment under
Part 6 of Title I of the Employee Retirement Income Security Act of
1974, as amended, shall be deemed satisfied by the coverage provided in
this section 6.
7. Change in Control. For purposes of this Agreement, a
"Change in Control" of the Company shall be deemed to have occurred if:
(A) any "person" as such term is defined and applied
as of the Effective Date in Section 2(9) and Section 13(d) of
the Securities Exchange Act of 1934 (the "1934 Act"),
increases (directly or indirectly) its "beneficial ownership"
(within the meaning of Rule 13-d3 promulgated under the 1934
Act, of the voting securities of the Company by more than 20%
of the total issued and outstanding voting securities of the
Company beneficially owned by such person as of the Effective
Date; or
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(B) a majority of the Board consists of individuals
other than "Incumbent Directors," which term means the
members of the Board on the Effective Date; provided that any
individual becoming a director subsequent to such date whose
election or nomination for election was supported by two-
thirds of the directors who then comprised the Incumbent
Directors shall be considered to be an Incumbent Director; or
(C) the Board adopts any plan of liquidation providing
for the distribution of all or substantially all of the
Company's assets or business; or
(D) all or substantially all of the assets or business
of the Company is disposed of pursuant to a merger,
consolidation or other transaction (unless the stockholders
of the Company immediately prior to such merger,
consolidation or other transaction beneficially own, directly
or indirectly, in substantially the same proportion as they
owned the voting securities of the Company, all of the voting
securities or other ownership interests of the entity or
entities, if any, that succeed to the business of the
Company); or
(E) the Company combines with another company and is
the surviving corporation but, immediately after the
combination, the holders of voting securities of the Company
immediately prior to the combination hold, directly or
indirectly, 50% or less of the voting securities (measured by
number of votes entitled to be cast) of the combined company
(there being excluded from the number of shares held by such
stockholders, but not from the voting securities of the
combined company, any shares received by affiliates of such
other company in exchange for stock of such other company).
XII. TRADE SECRETS
Executive acknowledges the interest of Company in maintaining the
confidentiality of information related to its business and shall not at
any time during the employment term or thereafter, directly or
indirectly, reveal or cause to be revealed to any person or entity
confidential business information obtained by him as a result of his
employment or relationship with Company except when authorized in
writing to do so by the Board of Directors of Company.
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XIII. OUTPLACEMENT SERVICES
In the event of the termination of Executive's employment after a
Change in Control or without Cause or for Good Reason or Company does
not extend this Agreement or enter into a new employment and
compensation agreement with Executive, in each case as provided for in
this Agreement, Company agrees, at its sole cost and expense, to
provide Executive with outplacement services for a period of twelve
(12) months following the date of termination. Company and Executive
shall use their good faith efforts to locate a provider, and determine
the scope of outplacement services which is reasonably acceptable to
both parties taking into account the status of Executive as a senior
executive officer.
XIIIIV. NOTICE
Any and all notices shall be given in writing by hand delivery,
recognized overnight carrier such as UPS or Federal Express, registered
or certified mail, return receipt requested, which shall be addressed,
in the case of the Company, to its office to the attention of Chairman
of the Board and in the case of the Executive, to the last address known
to the Company.
XIV. MODIFICATIONS
No modification of this Agreement shall be valid unless such
modification is in writing and signed by the Company and Executive.
XVI. WAIVER
No waiver of any provision of this Agreement shall be valid unless
in writing and signed by the person or party against whom charged
XVII. APPLICABLE LAW
This Agreement shall be subject to and governed by the laws of the
State of Florida.
XVII. ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of
the Company and the Executive and their respective heirs, legal
representatives, executors, administrators, successors and assigns.
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XIX. ENTIRE AGREEMENT
This Agreement represents the entire understanding between the
parties with regard to the subject matter contained herein and shall
supersede any prior agreement between the parties.
XX. REMEDIES
The parties acknowledge that any breach, violation or evasion by
Executive of the terms of this Agreement will result in immediate and
irreparable injury and harm to Company and will cause damage to Company
in amounts difficult to ascertain. Accordingly, Company shall be
entitled to the remedies of injunction and specific performance, or
either of such remedies, as well as to all other legal or equitable
remedies to which Company may be entitled, including, without
limitation, termination of the employment term and this Agreement.
XVIIII. SEVERABILITY
In case this Agreement, or any one or more of the provisions
hereof, shall be held to be invalid, illegal or unenforceable within any
governmental jurisdiction or subdivision thereof, the Agreement or any
such provision or provisions shall not as a consequence thereof be
deemed to be invalid, illegal or unenforceable in any other governmental
jurisdiction or subdivision thereof. In case any one or more of the
provisions contained in this Agreement shall for any reason be held to
be invalid, illegal or unenforceable in any other respect, such
invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement, but this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been
contained herein and there shall be deemed substituted such other
provision as will most nearly accomplish the intent of the parties to
the extent permitted by applicable law.
XIXII. INDEMNIFICATION
The Company shall indemnify the Executive from and against any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action
by, or in the right of, the Corporation), brought to impose a liability
or penalty on Executive in his capacity of director, officer, employee
or agent of the Company or of any other corporation which he serves as
such at the request of the Company, against judgments, fines, amounts
paid in settlement and expenses, including attorneys' fees, actually and
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reasonably incurred as a result of such action, suit or proceeding, or
any appeal thereof, if he acted in good faith in the reasonable belief
that such action was in the best interests of this Corporation, and in
criminal actions or proceedings without reasonable ground for belief
that such action was unlawful. The termination of any such civil or
criminal action, suit or proceeding by judgment, settlement, conviction
or upon a plea of nolo contendere shall not in itself create a
presumption that Executive did not act in good faith in the reasonable
belief that such action was in the best interests of the Company or that
he had reasonable ground for belief that such action was unlawful. The
foregoing rights of indemnification shall apply to the heirs and
personal representatives of any such director, officer, employee or
agent and shall not be exclusive of other rights to which he may be
entitled. Company shall advance all costs and expenses of defense as
well as any amounts paid in settlement to any party. Executive shall
reimburse Company for any amounts advanced in his defense or paid on his
behalf if it is determined by a final judgment of a court of competent
jurisdiction that Executive's actions were intentionally contrary to the
best interests of the Company or intentionally unlawful. It is intended
that the indemnity provisions contained in this section shall permit the
Company to indemnify the Executive to the fullest extent permitted by
law. This indemnification shall survive termination of this agreement.
In addition to and in furtherance of the indemnification provisions
contained in this agreement, the Company shall maintain Directors and
Officers liability insurance with a company and coverage acceptable to
the Executive.
XXIII. NO MITIGATION; NO OFFSET
In the event of any termination of employment under this
Agreement, the Executive shall be under no obligation to seek other
employment and there shall be no offset against amounts due the
Executive under this Agreement on account of (i) any remuneration
attributable to any subsequent employment that he may obtain or (ii) any
claims the Company may have against the Executive.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered as of the day and year first above
written.
COMPANY:
SDC INTERNATIONAL Inc.
a Delaware corporation
By:/s/Xxxxx X. Gree, Jr.
---------------------
Witness:Xxxxxx X. Xxxxx Xxxxx X. Xxxxx, Xx.,
--------------- Compensation Committee
(Corporate Seal)
EXECUTIVE:
/s/Xxxxxx X. Xxxxx /s/Xxxxxx K. Srkal
------------------------- -------------------
Witness: Xxxxxx X. Xxxxx Xxxxxx K. Srkal
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