Exhibit 10.4
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into on this 4th day of
January, 2001, amends and restates the Original Employment Agreement dated April
1, 2000, by and between BIOMED RESEARCH TECHNOLOGIES, Inc. a Delaware
corporation (COMPANY), and XXXXXX X XXXXXX or his corporate assignee(s) jointly,
(hereinafter referred to as "EMPLOYEE").
RECITALS
WHEREAS, COMPANY does cutting edge research in the biomedical field of
which EMPLOYEE is a principal shareholder and,
WHEREAS, COMPANY desires to employ EMPLOYEE and EMPLOYEE desires to
serve the COMPANY as the COMPANY's Executive Vice President, COO and,
WHEREAS, EMPLOYEE's services for and on behalf of the COMPANY are of
material importance to the enhancement of the value of the COMPANY's business.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein set forth, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the COMPANY and EMPLOYEE do hereby
agree as follows:
1. EMPLOYMENT
COMPANY hereby employs EMPLOYEE in its business as Executive
Vice President and COO and EMPLOYEE hereby accepts such
employment, all upon the terms and conditions hereinafter set
forth.
2. TERM
Unless sooner terminated pursuant to the provisions of this
Agreement the term of employment under this Agreement shall be
for a five (5) years commencing April 1, 2000 ("Employment
Period"). The Employment Period shall be automatically renewed
for succeeding terms of one (1) year ("Successive Employment
Period") unless either party gives written notice of his
intention not to renew said Agreement to the other party, at
least one-hundred-eighty (180) days prior to the end of the
initial five-year term, or any extended term.
3. DUTIES
3.1 During the Employment Period EMPLOYEE shall serve in
the Office of Executive Vice President, COO and
perform appropriate executive services
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for the COMPANY in accordance with the historical
nature and scope of duties performed by EMPLOYEE as
Executive Vice President, COO of BIOMED RESEARCH
TECHNOLOGIES, Inc.
3.2 EMPLOYEE shall be entitled to make ALL normal
executive level management decisions of the COMPANY
that involve matters within the COMPANY's usual
course of business and are duties customary for the
EMPLOYEE in his or her capacity of Executive Vice
President, and COO. EMPLOYEE's authority to manage
the COMPANY shall be subject to review and direction
from his or her immediate manager, if any, or by the
Board of Directors of the COMPANY. Compensation paid
to EMPLOYEES of the COMPANY shall be at industry
standards. Bonuses, if any, for said EMPLOYEES shall
be based on the individual EMPLOYEE's performance and
tied to a formula adopted by the COMPANY's Board of
Directors.
3.3 During the term of this Agreement, although EMPLOYEE
is involved in managing other businesses, EMPLOYEE
shall devote primarily majority of his time, energy,
and skill to the service of the COMPANY and the
promotion of COMPANY'S interests, and shall use his
best efforts in the performance of his services
hereunder. EMPLOYEE agrees to abide by all rules and
regulations established from time to time by the
Board; and all commissions, fees or other income
earned and received by EMPLOYEE, if any, in
furtherance of the business of COMPANY, or its
affiliates or from any other business or financial
opportunity or endeavor in which EMPLOYEE is an
active participant and not a passive investor, shall
be accepted by EMPLOYEE for the account of COMPANY,
and shall be remitted to COMPANY within three (3)
days of EMPLOYEE's receipt thereof.
3.4 EMPLOYEE may, if elected, without additional
compensation, unless expressly approved by the Board
of Directors of the COMPANY, serve as a director of
the COMPANY.
3.5 The services of EMPLOYEE shall be rendered in such
places and localities as the COMPANY may require from
time to time, and he shall do such traveling on
behalf of the COMPANY as may reasonably be required
consistent with the historical requirements of the
office of Executive Vice President, COO of the
COMPANY.
3.6 EMPLOYEE shall comply with all COMPANY policies for
the EMPLOYEES; as such policies may exist from time
to time.
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4. COMPENSATION
4.1 The COMPANY will compensate and pay EMPLOYEE for his
services during the term of this Agreement a base
salary of $250,000 per year ("Base Salary"). The Base
Salary shall be paid to EMPLOYEE at no less than
monthly intervals in accordance with the current
normal payroll policies of which policies may be
changed by COMPANY from time to time with inclusion
of cost of living adjustment on a mutually acceptable
terms. All compensation paid to EMPLOYEE shall be
subject to all appropriate withholding taxes.
4.2 EMPLOYEE shall be entitled to a bonus annually equal
to no less than one and a half (1.5%) percent of the
net profits of the COMPANY calculated without taking
into account any kind of distribution to the
subsidiaries of the COMPANY. Net Profits shall be
defined according to Generally Accepted Accounting
Principles. EMPLOYEE may elect to take this bonus in
any combination of cash and stock. Computation of
stock is based on the Board of Directors approved
Stock Option Plan.
4.3 Compensation for each Successive Employment Period
shall be determined, within thirty (30) days of the
expiration of the Employment Period or each
Successive Employment Period, through good faith
negotiations between COMPANY and EMPLOYEE. Should the
parties hereto fail to agree upon a mutually
acceptable compensation package, the compensation in
effect for the immediately proceeding period shall
continue until the parties hereto agree on its
modification.
4.4 Sign in Bonus. EMPLOYEE shall be entitled to receive
600,000 shares of common stock of COMPANY which shall
vest 12 months from execution of this agreement.
5. DEATH
5.1 In the event of the death of EMPLOYEE during the term
of this Agreement, COMPANY shall pay to the Estate of
EMPLOYEE the amount to which EMPLOYEE would have been
entitled to receive for the lesser of (a) salary for
the remaining of five (5) year period, or (b) salary
for the remaining period of this Agreement; in
regular monthly payments for the term that remains on
this Agreement to commence three (3) months after the
death of EMPLOYEE.
5.2 There shall be deducted from the amounts paid to
EMPLOYEE pursuant to Section 4.1, above, the amount
actually paid to EMPLOYEE's designated beneficiary,
as proceeds of life insurance, if any, which the
COMPANY may have instituted on behalf of EMPLOYEE, as
set forth under Section 7 (the "Term of The
Insurance").
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6. DISABILITY
6.1 In the event of disability of EMPLOYEE (whether
temporary or permanent) to render services hereunder
during the term hereof, and so long as such
disability continues, EMPLOYEE shall continue to
receive his full compensation during the period of
such disability for a remaining unpaid period of this
Agreement, or until the termination of this Agreement
as defined in Section 9 herein, whichever first
occurs.
6.2 There shall be deducted, from the amounts paid to
EMPLOYEE hereunder during any period of disability,
any amounts actually paid to EMPLOYEE pursuant to any
disability insurance or other similar program, which
the COMPANY has instituted or may institute on behalf
of its EMPLOYEES.
7. PARTICIPATION IN PLANS AND BENEFITS
During the term of this Agreement, EMPLOYEE will be entitled
to participate in and receive the benefits of all plans,
benefits and privileges given to EMPLOYEES and executives of
the COMPANY, whether now established or granted or which may
come into existence hereafter, including, without limitation,
the following:
7.1 COMPANY agrees to provide medical and dental services
or reimbursement for such expenses to EMPLOYEE and or
members of his immediate family. Such medical plan
shall be comparable to the benefits provided under a
comprehensive medical plan approved by the Board of
Directors.
7.2 Upon the Board of Directors approval, COMPANY agrees
to secure term life insurance on the life of
EMPLOYEE, which is in effect at the time of execution
of this Agreement. COMPANY agrees to pay all premiums
on the policy during the term of employment provided
herein. The term of life insurance should equate no
less than three (3) times the EMPLOYEE's annual
salary.
7.3 Upon the Board of Directors approval, the COMPANY
shall continue disability insurance for EMPLOYEE,
which is in effect at the time of execution of this
Agreement, and which shall remain in effect during
the term of this Agreement.
7.4 EMPLOYEE shall be entitled to a two (2) week of
annual vacation without reduction of EMPLOYEE's
compensation. EMPLOYEE shall be entitled to such
additional time of not less than seven (7)
non-consecutive days per annum without loss of
compensation for attendance at meetings, conventions,
and postgraduate courses as the Board of Directors of
COMPANY shall, from time to time determine. Vacation
days must be used during the calendar year and may
not be accumulated. Each year of
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employment shall add an additional week of paid
vacation, which shall not exceed six (6) weeks.
7.5 EMPLOYEE shall be entitled to twelve (12)
non-consecutive days per annum absence due to
sickness without reduction of EMPLOYEE's
compensation. Sick days must be used during the
calendar year and may not be accumulated.
7.6 EMPLOYEE shall also receive such other benefits,
fringe benefits and entitlements as is usual and
customary for COMPANY to supply an EMPLOYEE of like
status and position according to COMPANY's
established policies on employment, as can be
reasonably provided, and consistent with the term of
employment contemplated under this Agreement.
7.7 In the event that the parties do not reach agreement
on a successor employment agreement on such terms
that are mutually agreeable, and as a result of the
EMPLOYEE ceases to be employed by the COMPANY, the
COMPANY shall pay the EMPLOYEE severance pay equal to
the EMPLOYEE's base salary and COMPANY performance
adjustment due pursuant to this Agreement for a
period of 36 months after the EMPLOYEE leaves the
COMPANY's employ.
7.8 In the event that EMPLOYEE is terminated without
cause and as a result the EMPLOYEE ceases to be
employed by the COMPANY, the COMPANY shall pay the
EMPLOYEE severance pay equal to the EMPLOYEE's base
salary and COMPANY performance adjustment due
pursuant to this Agreement for a period of 36 months
after the EMPLOYEE leaves the COMPANY's employ.
8. EXPENSES
The COMPANY shall reimburse EMPLOYEE or otherwise provide for
or pay for all reasonable expenses incurred by EMPLOYEE in
furtherance or in connection with the business of the COMPANY
and its subsidiaries, including, without limitation,
automobile and traveling expenses, and all reasonable
entertainment expenses. EMPLOYEE agrees that he will furnish
the COMPANY'S adequate records and other documents bearing
evidence required by state and federal statutes and
regulations issued by the appropriate taxing authorities for
the substantiation of each such business expense as a
deduction on the federal and state income tax returns of the
COMPANY. If EMPLOYEE pays for such expenses in the first
instance, the COMPANY will reimburse him. The COMPANY shall
issue to the EMPLOYEE a corporate American Express card for
use in connection with expenses incurred in connection with
the performance of this Agreement.
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9. TERMINATION
9.1 COMPANY SHALL HAVE THE ABSOLUTE RIGHT TO TERMINATE
THIS AGREEMENT ON THE OCCURRENCE OF ANY OF THE
FOLLOWING EVENTS:
9.1.1 Whenever COMPANY and EMPLOYEE shall MUTUALLY
agree to terminate in writing.
9.1.2 Whenever the Board of Directors of COMPANY
determines that cause (as defined in Section
9.4 herein) exists for the termination of
EMPLOYEE or COMPANY allows EMPLOYEE to
resign in lieu of termination.
9.1.3 Upon the death of EMPLOYEE.
9.1.4 If EMPLOYEE shall suffer temporary or
permanent disability. For purposes of this
Agreement, "Disability" shall be defined as
EMPLOYEE's inability, through physical or
mental illness or other cause, to perform
the majority of his usual duties for a
period of six (6) months, or as may be
defined in a valid disability insurance
policy, whichever definition is less
restrictive.
9.1.5 Upon the retirement of EMPLOYEE at age of
Seventy (70) or at any age thereafter.
9.1.6 Inability to perform assigned duties as
defined and expected by the COMPANY's Board
of Directors.
9.2 EMPLOYEE shall have the absolute right to terminate
this Agreement upon thirty (30) days prior written
notice by EMPLOYEE to the COMPANY.
9.3 Upon termination for any of the foregoing causes,
EMPLOYEE shall be entitled to receive only the
compensation accrued, but unpaid, as of the date of
termination and shall not be entitled to additional
compensation except as expressly provided in this
Agreement.
9.4 The COMPANY may immediately terminate this Agreement
for cause by written notice to the EMPLOYEE for any
of the following reasons: theft, fraud, embezzlement,
dishonesty, or any material breach of this Agreement.
In the event that the COMPANY terminates the EMPLOYEE
for just cause the COMPANY shall not be liable to
make any further payments under this Agreement except
for amounts due at the time of such termination.
9.5 The COMPANY may terminate this Agreement without
cause upon thirty (30) day written notice to the
EMPLOYEE. In the event of a without cause termination
by the COMPANY, the EMPLOYEE shall receive his salary
and
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all other benefits provided herein for the duration
of the Agreement. In addition, the EMPLOYEE shall
thereafter receive severance benefits in accordance
with Section 9.1.
10. BUSINESS RECORDS; SURRENDER
10.1 All business and financial records pertaining to
customers of the COMPANY, including but not limited
to books, software, records, memoranda, orders,
invoices, list of customers, xxxxxxxx and payment of
xxxxxxxx and all records pertaining to compensation
and expenses of EMPLOYEE within the scope of
employment shall at all times be the property of the
COMPANY.
10.2 Upon the termination of the EMPLOYEE's employment
hereunder, for any reason whatsoever, and in addition
to such other actions as may be reasonably required
by Employer, the EMPLOYEE agrees to surrender to the
Employer, in good condition, any record or records
kept by him containing the names, addresses, and
other information with regard to customers or
potential customers of Employer which have been
served or solicited by the EMPLOYEE.
11 MERGER, TRANSFER, DISSOLUTION OR CHANGE OF CONTROL
Except as provided in Section 12, this Agreement shall not be
terminated by:
11.1 merger or consolidation where COMPANY is not the
consolidated or surviving corporation;
11.2 transfer of all or substantially all of the assets of
COMPANY;
11.3 change of control of COMPANY as described in Section
12;
11.4 in the event, EMPLOYEE may elect at his/her own
option to terminate this agreement within thirty (30)
days written advanced notice.
In the event of any such merger, consolidation, transfer of
assets or change of control of COMPANY, the surviving or
resulting corporation or the transferee of COMPANY's assets
shall be bound by, and shall have the benefit of, the
provisions of this Agreement.
12. CHANGE IN CONTROL
12.1 Notwithstanding anything contained in this Agreement
to the contrary, for the purposes of this Agreement,
a "change in control of COMPANY" shall mean the
occurrence of any of the following events:
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12.1.1 any "person" (as that term is used in
Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended ("Exchange
Act")), who holds less than 20% of the
combined voting power of the securities of
the COMPANY, becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities
of COMPANY representing twenty-five percent
or more of the combined voting power of the
securities of COMPANY then outstanding; or
12.1.2 during any period of twenty-four (24)
consecutive months, individuals who at the
beginning of such period constitute all
members of the Board of Directors of COMPANY
shall cease, for any reason, to constitute
at least a majority of the Directors, unless
the election of each Director who was not a
Director at the beginning of the period was
approved by a vote of at least two-thirds of
the Directors then still in office who were
Directors at the beginning of the period; or
12.1.3 COMPANY shall consolidate or merger with
another company and COMPANY is the
continuing or surviving corporation, or
shares of COMPANY's common stock are
converted into cash, securities, or other
property, other than a merger of COMPANY in
which the holders of the COMPANY's common
stock immediately prior to the merger have
the same proportionate ownership of common
stock of the surviving corporation
immediately after the merger as they had in
COMPANY immediately prior to the merger; or
12.1.4 COMPANY shall sell, lease, exchange, or
otherwise transfer all or substantially all
of its assets (in one transaction or in a
series of related transactions); or
12.1.5 the stockholders of COMPANY shall approve a
plan or proposal for the liquidated or
dissolution of COMPANY.
12.2 EMPLOYEE shall have the right to resign from the
employ of COMPANY at any time after a change in
control of COMPANY. If EMPLOYEE resigns within two
years of such a change in control, he shall be
entitled to the payment provided in Section 12.3.
12.3 If EMPLOYEE resigns from the employ of COMPANY within
two years of a change in control of COMPANY, or if
COMPANY terminates this Agreement after a change in
control of COMPANY for any reason other than
substantial cause, then the following provisions of
this Section 12 shall apply:
12.3.1 in lieu of any further salary payments to
EMPLOYEE for periods subsequent to the date of
the termination of his employment,
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COMPANY shall pay to EMPLOYEE, in a lump sum
and in cash, as liquidated damages, an amount
equal to the sum of:
(i) the greater of (I) three years' base
salary, or (II) the base salary due
to EMPLOYEE for the remaining term of
this Agreement, in either case at the
greater of the rate in effect at the
date of the change in control of
COMPANY or at the date of
termination; plus
(ii) an amount equal to a multiple of two
(2) times the largest total of the
bonuses previously paid in any one
year by COMPANY to EMPLOYEE pursuant
to the provisions of Section 4.2
hereof.
12.3.2 COMPANY shall maintain in full force and
effect until the expiration of the term of
this Agreement, at its expense, all group
insurance and other EMPLOYEE benefit plans
(including, without limitation, qualified
profit-sharing and retirement type plans) in
which EMPLOYEE was entitled to participate
prior to the date of his termination, provided
that EMPLOYEE's continued participation is
possible under the terms of such plans. If
EMPLOYEE's continued participation under such
plans is not possible, COMPANY shall arrange
to provide EMPLOYEE with alternative benefits
substantially similar to those provided under
the group insurance and EMPLOYEE benefit plans
of COMPANY in which EMPLOYEE was participating
prior to the date of his termination.
Any payment due to EMPLOYEE pursuant to the provisions
of this Section 12.3 shall be paid to him by COMPANY on the
fifth day following the date of EMPLOYEE's termination.
12.4 For purposes of the remaining provisions of this
Section 12 the following terms shall have the
following meanings:
12.4.1 The term "Code" shall mean the Internal
Revenue Code of 1986, as amended; and any
references to sections thereof shall include
any successor provisions of the Code or of
any future income tax laws enacted as
successors to the Code;
12.4.2 The term "Excise Tax" shall mean the tax
imposed by Section 4999 of the Code;
12.4.3 The term "Gross-Up Payment" shall mean the
payment referred to in subsection 12.5 of
this Section 12.
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12.4.4 The term "Section 12 Payments" shall mean
all payments to which EMPLOYEE shall become
entitled under the provisions of this
Section 12.
12.4.5 The term "Other Payments" shall mean any
payments or benefits, other than the Section
12 Payments, received or to be received by
EMPLOYEE in connection with a change in
control of COMPANY, or in connection with
EMPLOYEE's termination of employment, and
which are payable pursuant to the terms of
any plan, arrangement, or agreement (other
than this Agreement) with COMPANY, with
COMPANY's successors, with any person whose
actions result in a change in control of
COMPANY, or with any person affiliated
either with COMPANY or with any person whose
actions result in a change in control of
COMPANY.
12.5 If EMPLOYEE becomes entitled to any payments under
this Section 12 and if the Section 12 Payments or any
Other Payments will be subject to the Excise Tax,
then COMPANY shall pay to EMPLOYEE an additional sum
(the "Gross-Up Payment") sufficient to provide
EMPLOYEE with a net amount equal to the sum of the
Section 12 and the Other Payments, after deduction of
any Excise Tax on such Payments and after deduction
of any federal, state, or local income taxes, and of
any Excise Tax, upon the Gross-Up Payment. The amount
due from COMPANY under this Section 12.5 shall be
paid to EMPLOYEE within five days of the date of
EMPLOYEE's termination.
12.6 The following rules shall apply for the purpose of
determining whether any of the Section 12 Payments or
any of the Other Payments will be subject to the
Excise Tax and for the purpose of computing the
amount of any such Excise Tax:
12.6.1 The value of any benefits payable to
EMPLOYEE in any form other than cash, and
the value of any deferred payments or
benefits due to EMPLOYEE from COMPANY, shall
be determined by COMPANY's independent
auditors in accordance with the provisions
of Section 280G(d)(3) of the Code.
12.7 For purpose of determining the amount of the Gross-Up
Payment:
12.7.1 EMPLOYEE shall be deemed to be subject to
state and local income taxes at the highest
marginal rate of taxation in the state and
locality of EMPLOYEE's principal residence
on the date of his termination; and
12.7.2 EMPLOYEE shall be deemed to be subject to
federal income taxes at the highest marginal
rate of federal income taxation in the
calendar year in which the Gross-Up Payment
is due (net of the maximum
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reduction in federal income taxes which EMPLOYEE can
obtain from deduction of the state and local taxes
described in the preceding clause).
12.8 If the Excise Tax is determined to exceed the amount
taken into account under the provisions of this
Section 12 at the time of the termination of EMPLOYEE
(including by reason of any payment, the existence or
the amount of which could not be determined at the
time of the Gross-Up Payment), COMPANY shall make an
additional Gross-Up Payment in respect of such excess
and in respect of any interest payable with respect
to such excess, at the time that the amount of such
excess is finally determined.
12.8.1 EMPLOYEE shall not be required to mitigate
the amount of any payment provided for in
this Section 12 by seeking other employment
or otherwise; and the amount of any payment
provided for in this Section 12 shall not be
reduced by any compensation earned by
EMPLOYEE, either as the result of employment
by any other employer after the date of his
termination of employment with COMPANY or
otherwise.
13. COMPANY'S AUTHORITY
EMPLOYEE agrees to observe and comply with the rules and
regulations of COMPANY as adopted by COMPANY's Board of
Directors, which are not inconsistent with his sole discretion
to manage the operations of the COMPANY, communicated in
writing, respecting performance of his duties, and to carry
out and perform orders, directions, and policies stated by
COMPANY to him, from time to time, communicated in writing.
14. INDEMNIFICATION OF LOSSES OF EMPLOYEE
COMPANY shall, to the maximum extent permitted by law,
indemnify EMPLOYEE against expenses (including reasonable
attorney's fees), judgments, fines, settlements, and other
amounts actually and reasonably incurred in connection with
any proceedings arising by reason of the fact that EMPLOYEE
is, or was, an employee, officer or agent of COMPANY. COMPANY
shall advance to EMPLOYEE expenses incurred in defending any
such proceedings to the maximum extent permitted by law.
COMPANY's obligations under this Section shall not cease upon
termination of this Agreement. EMPLOYEE may select legal
counsel, at his sole discretion, to represent him in any such
proceedings.
15. MISCELLANEOUS
15.1 Any and all notices, demands, requests or other
communication required or permitted by this Agreement
or by law to be served on, given to, or delivered to
any party hereto by any other party to this Agreement
shall be in writing and
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shall be deemed duly served, given, or delivered when
personally delivered to the COMPANY or to an officer
of the COMPANY, or in lieu of such personal delivery,
when deposited, in the United States mail, registered
or certified mail, addressed to the COMPANY, at the
address of its principal office located at 00000
Xxxxxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxx, XX 00000 or
to the EMPLOYEE at the address then appearing for him
on the books and records of the COMPANY. The COMPANY
may change the address of its principal office in the
manner required by law for purposes of this paragraph
by giving notice to the change, in the manner
required by this paragraph, to the respective
parties.
15.2 Notwithstanding anything to the contrary contained
herein, the payment or obligation to pay any money,
or granting of any rights or privileges, to the
EMPLOYEE as provided in this Agreement shall not be
in lieu or in derogation of the rights and privileges
that the EMPLOYEE now has under any plan or benefit
presently outstanding.
15.3 This Agreement may not be modified, changed, amended,
or altered except in writing signed by the EMPLOYEE
or his duly authorized representative, and by a duly
authorized officer of the COMPANY.
15.4 This Agreement shall be interpreted in accordance
with the laws of the State of Florida without
application of its conflict of law provisions. It
shall inure to the benefit of and be binding upon the
COMPANY, and its successors and assigns.
15.5 EMPLOYEE shall not assign his rights and/or
obligations hereunder.
15.6 Should any litigation be commenced between the
parties to this Agreement concerning any provision of
this Agreement, the party prevailing in such
litigation shall be entitled, in addition to such
other relief as may be granted, to a reasonable sum
as and for his attorney's fees in such litigation
which shall be determined by the Court in such
litigation or in a separate action brought for that
purpose.
15.7 An original copy of this Agreement duly executed by
the COMPANY and by the EMPLOYEE shall be delivered to
the governing body of the COMPANY and be maintained
by it at the principal office of COMPANY available
for inspection only by consent of the EMPLOYEE.
15.8 Should any provision or portion of this Agreement be
held unenforceable or invalid for any reason, the
remaining provisions and portions of this Agreement
shall be unaffected by such holding, subject to such
invalidity not rendering the balance of the Agreement
to be inconsistent with the original intent of the
parties as evidenced by the terms of this Agreement.
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15.9 This instrument constitutes the entire understanding
and Agreement of the parties hereto respecting the
subject of this Agreement and supersedes all prior
agreements, promises, negotiations, or
representations (if any) concerning its subject
matter not expressly set forth in this Agreement are
of no force and effect.
15.10 This Agreement and any certificates made pursuant
hereto, may be executed in any number of counterparts
and when so executed all of such counterparts shall
constitute a single instrument binding upon all
parties hereto notwithstanding the fact that all
parties are not signatory to the original or to the
same counterpart.
15.11 This Article and Section headings used in this
Agreement are for reference purposes only, and should
not be used in construing this Agreement.
15.12 As used in this Agreement, the masculine gender shall
include the feminine and neuter, and singular number
shall include the plural, and vice versa.
15.13 Time is of the essence of this Agreement.
15.14 The Effective Date of this Agreement commences on
April 1st, 2000.
15.15 The failure or delay of COMPANY at any time to
require performance by EMPLOYEE of any provision of
this Agreement, even if known, shall not affect the
right of COMPANY to require performance of that
provision or to exercise any right, power or remedy
hereunder, and any waiver by COMPANY of any breach of
any provision of this Agreement should not be
construed as a waiver of any continuing or succeeding
breach of such provision, a waiver of the provision
itself, or a waiver of any right, power ore remedy
under this Agreement. No notice to or demand on
EMPLOYEE in any case shall, of itself, entitle such
party to any other or further notice or demand in
similar or other circumstances.
15.16 EMPLOYEE acknowledges that the services to be
rendered by EMPLOYEE hereunder are extraordinary and
unique and are vital to the success of the COMPANY,
and that damages at law would be an inadequate remedy
for any breach of threatened breach of this Agreement
by EMPLOYEE. Therefore, in the event of a breach or
threatened breach by EMPLOYEE of any provision of
this Agreement, then COMPANY shall be entitled, in
addition to all rights or remedies, to injunctions
restraining such breach, without being required to
show any actual damage or to post any bond or other
security.
15.17 The parties acknowledge that a substantial portion of
negotiations, anticipated performance and execution
of this Agreement occurred or shall occur in
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Broward County, Florida, and that, therefore, without
limiting the jurisdiction or venue or any other
federal or state courts, each of the parties
irrevocably and unconditionally (a) agrees that any
suit, action or legal proceeding arising out of or
relating to this Agreement may be brought in the
courts or records of the State of Florida in Broward
County or the court of the United States, Southern
District of Florida; (b) consents to the jurisdiction
of each such court in any such suit, action or
proceeding; (c) waives any objection which it may
have to the laying of venue of any such suit, action
or proceeding in any such courts; and (d) agrees that
service of any court paper may be effected on such
party by mail, as provided in this Agreement, or in
such other manner as may be provided under applicable
laws or court rules in said state.
15.18 Notwithstanding anything to the contrary herein, the
provisions of Sections 5, 6, 7, 8, 12, and 15 shall
survive and remain in effect in accordance with their
respective terms in the event employment is
terminated.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year as set forth below.
Employee Name: Xxxxxx Xxxxxx Date: 1/4/01
Employee Signature: /s/ Xxxxxx Xxxxxx
--------------------------
Company Authorized Officer name: Xxxxx Xxxxxx Date: 1/4/01
Signature: /s/ Xxxxx Xxxxxx
-----------------------------------
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