EXHIBIT 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is made and
entered into as of the 3 day of January, 2002 (the "Effective Date"), between
EVOLVE ONE, INC., a Delaware corporation, whose principal place of business is
0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, XX 00000 (the "Company") and
XXXXXXX XXXXX, an individual whose mailing address is 0000 Xxxxxxxx Xxxxxx,
Xxxxx 000, Xxxx Xxxxx, XX 00000 (the "Executive").
RECITALS
A. The Company is a Delaware corporation and is principally engaged in
the business of developing and operating Internet and direct retail
marketing companies and computer services providers on the Internet
(the "Business").
B. The Company has established a valuable reputation and goodwill in the
Business.
C. The Company desires to continue to employ the Executive and the
Executive desires to be employed by the Company and to enter into a
formal employment agreement for the benefit and protection of all of
the parties.
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Company and the Executive 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 Executive as the Company's
Director of Marketing, and the Executive hereby accepts employment, upon the
terms and conditions hereinafter set forth.
3. Duties and Responsibilities. During the term of this Agreement, the
Executive shall serve as Director of Marketing of the Company, and shall have
general supervision over the marketing affairs of the Company, 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 the Agreement, the Executive shall serve
as a member of the Board of Directors of the Company in accordance with the
Bylaws of the Company, but Executive shall have no obligation, in its
discretion, to serve as a director in order to fulfill the terms of this
Agreement. In the event the Executive shall at any time not be on the Board of
Directors of the Company and serving in the capacity above indicated, it shall
be presumed (if Executive so elects) that the Executive has been terminated
Other than for Cause (as hereinafter defined) and Executive shall have all of
the rights specified in Section 6.h. of this Agreement just as if the Executive
had been terminated "Other than for Cause.
4. Term. The Term of employment hereunder will commence on the date as set
forth above and terminate eight (8) years from the Effective Date, and such term
shall automatically be extended for successive one (1) year terms thereafter
unless (1) the parties mutually agree in writing to alter or amend the terms of
the Agreement; or (2) one or both of the parties exercises their right, pursuant
to Section 6 herein, to terminate this employment relationship. For purposes of
this Agreement, the Term (the "Term") shall include the initial term and all
renewals thereof.
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5. Compensation and Benefits.
(a) Salary.
(1) The Executive shall be paid a base salary (the "Base
Salary"), payable bi-weekly, at an annual rate of no less
than One Hundred Fifty Thousand Dollars ($150,000.00) for
the first year, with annual incremental increases of ten
(10%) percent per year on each anniversary of the effective
date of this Agreement.
(2) In the event the Executive shall at any time not be on the
Board of Directors of the Company and serving in the
capacities above indicated, it shall be presumed (if
Executive so elects) that the Executive has been terminated
Other than for Cause (as hereinafter defined) and Executive
shall have all of the rights specified in Section 6.h. of
this Agreement just as if the Executive had been terminated
"Other than for Cause.
(b) Stock Options. As of the Effective Date, and at each anniversary
date hereof through January 3, 2009, (but not January 3, 2010 unless this
Agreement shall be renewed for an additional period), the Company shall grant to
the Executive options ("Options") to purchase 1,000,000 shares ("Shares") of
restricted common stock (the "Common Stock") of the Company (or the aggregate of
8,000,000 shares), which exercise price, exercise period and other provisions
are as follows:
(1) The exercise price of the Options, as it relates to each
annually granted Option, shall be the average of the closing
prices of the Company's Common Stock for the five trading
days preceding the anniversary date less fifteen (15%)
percent.
(2) The term of each annual Option shall be five years from the
date of each grant.
(3) At the request of the Executive, the Company agrees to
register these shares of Common Stock underlying the Options
on Form S-8 or other suitable registration form of the
Securities and Exchange Commission.
(4) In the event the Executive shall, at any time, not be on the
Board of Directors of the Company and serving in the
capacities indicated, it shall be presumed (if Executive so
elects) that the Executive has been terminated Other than
for Cause (as hereinafter defined) and Executive shall have
all the rights specified in Section 6.h. of this Agreement
just as if the Executive had been terminated "Other than for
Cause".
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(c) Offices. The Company shall provide suitable offices and facilities
to the Executive either at or off the premises of the Company to enable the
Executive to fulfill his responsibilities under this Agreement.
(d) Executive Benefits. The Executive 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,
hospitalization, surgical and major medical coverage, sick leave, disability and
salary continuation, vacation and holidays, cellular telephone and all related
costs and expenses, long-term disability, and other fringe benefits.
(e) Vacation. During each fiscal year of the Company, the Executive
shall be entitled to reasonable vacation time and to utilize such vacation as
the Executive shall determine; provided however, that the Executive shall
evidence reasonable judgment with regard to appropriate vacation scheduling.
Notwithstanding the foregoing, employee shall be entitled to four (4) weeks
vacation per year, with unused vacation accruing to the following year.
(f) Unaccountable Expense Allowance. The Executive shall be entitled
to receive an annual unaccountable expense allowance of $10,000 per year payable
on each anniversary date of this Agreement.
(g) Business Expense Reimbursement. During the term of employment, the
Executive shall be entitled to receive proper reimbursement for all reasonable,
out-of-pocket expenses incurred by the Executive (in accordance with the
policies and procedures established by the Company for its senior executive
officers) in performing services hereunder, provided the Executive properly
accounts therefor.
(h) Tail or Run-off Coverage. Following any change of control of the
Company or other termination of this Agreement, the Company will acquire tail or
run-off insurance for a three-year period for the benefit of the Executive in
the same amount as is currently in effect. At such time, such insurance shall be
prepaid for a three-year term.
6. Consequences of Termination of Employment.
(a) Death. In the event of the death of the Executive during the Term,
salary shall be paid to the Executive's designated beneficiary, or, in the
absence of such designation, to the estate or other legal representative of the
Executive for a period of two years from and after the date of death. In
addition, the Options not previously granted to the Executive for any succeeding
annual periods shall accelerate, and Options to purchase an aggregate of
8,000,000 shares of the Common Stock of the Company shall be deemed fully
vested. The exercise price for those Options that have not previously been
granted shall be at an exercise price equal to the average of the closing prices
of the Company's Common Stock for the five trading days preceding the date of
death less fifteen (15%) percent. The term of such accelerated Options shall
also be for a five-year period.
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(b) Disability.
(1) In the event of the Executive's disability, as hereinafter
defined, the Executive shall be entitled to compensation in accordance
with the Company's disability compensation practice for senior
executives, including any separate arrangement or policy covering the
Executive, but in all events the Executive shall continue to receive
the Executive's salary for a period, at the annual rate in effect
immediately prior to the commencement of disability, of not less than
two years from the date on which the disability has been deemed to
occur as hereinafter provided below. Any amounts provided for in this
Section 6(b) shall not be offset by other long-term disability
benefits provided to the Executive by the Company. In addition, the
Options not previously granted to the Executive for any succeeding
annual periods shall accelerate and Options to purchase an aggregate
of 8,000,000 shares of the Common Stock of the Company shall be deemed
fully vested. The exercise price for those Options that have not
previously been granted shall be at an exercise price equal to the
average of the closing prices of the Company's Common Stock for the
five trading days preceding the date of disability as hereinafter
defined less fifteen (15%) percent. The term of such accelerated
Options shall also be for a five-year period.
(2) "Disability," for the purposes of this Agreement, shall be
deemed to have occurred in the event (A) the Executive is unable by
reason of sickness or accident, to perform the Executive's duties
under this Agreement for an aggregate of 180 days in any twelve-month
period or (B) the Executive 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 Executive becomes reemployed, whether as an
Executive or a consultant to the Company, any salary, annual incentive
payments or other benefits earned by the Executive from such reemployment
shall offset any salary continuation due to the Executive hereunder
commencing with the date of re-employment.
(c) Termination by the Company for Cause.
(1) Nothing herein shall prevent the Company from terminating
Employment for "Cause," as hereinafter defined. The Executive shall
continue to receive salary only for the period ending twenty (20) days
after the date of such termination plus any accrued Bonus through such
date of termination. Any rights and benefits the Executive 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.
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(2) "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 of this Agreement: (A) Committing or
participating in an injurious act of, gross neglect or embezzlement
against the Company; (B) committing or participating in any other
injurious act or omission wantonly, willfully, 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 Executive in violation of Section
14 of this Agreement. No actions, events or circumstances occurring or
taking place at any time prior to the date of this Agreement shall in
any event constitute or provide any basis for any termination of this
Agreement for Cause. Any other termination shall be deemed a
termination "Other than for Cause."
(3) 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 Executive a
notice of termination stating that the Executive 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 Executive
shall be given a forty-five (45) day period to cure such conduct, if
possible. The Executive shall be entitled to receive his entire
compensation during such notice period or during the pendency of any
litigation relating to this Agreement and any termination hereunder.
(d) Termination by the Company Other than for Cause.
(1) The foregoing notwithstanding, the Company may terminate the
Executive'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 Executive shall continue to
perform the Executive's duties pursuant to this Agreement, and the
Company shall continue to compensate the Executive in accordance with
this Agreement. The Executive will receive, at the Executive'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 of this Agreement from and after the
date of any such termination, the Company shall on the last day of
each calendar month pay to the Executive such "Compensation and
Benefits," which shall be an amount equal to (Y) One Hundred percent
(100%) of the Executive's compensation and benefits set forth in
Section 5, which shall specifically include the Base Salary and
Executive Benefits (the "Compensation and Benefits"), on the date of
any such termination, divided by (Z) twelve (12); provided, however,
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that if (A) there is a decrease in the Executive's Compensation and
Benefits of more than five (5%) percent prior to termination for any
reason Other than for Cause, and (B) the Executive is terminated
without cause, the Compensation and Benefits shall be as existed
immediately prior to such a decrease. The Executive 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 Executive with comparable benefit coverage during the term in
which the Executive is receiving payments from the Company after
termination pursuant to Section 6(d). Such benefit coverage will be
offset by comparable coverage provided to the Executive in connection
with subsequent employment.
(2) In the event that the Executive's employment with the Company
is terminated pursuant to this Section 6(d), Section 6(f) or Section
6(g), then Section 7(a) of this Agreement and all references thereto
shall be inapplicable as to the Executive and the Company.
(e) Voluntary Termination. In the event the Executive terminates the
Executive's employment on the Executive's own volition (except as provided in
Section 6(f) and/or Section 6(g)) prior to the expiration of the Term of this
Agreement, including any renewals thereof, such termination shall constitute a
voluntary termination and in such event the Executive 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 Executive 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 Executive:
(1) a significant change in the nature or scope of the
authorities, powers, functions, duties or responsibilities attached to
Executive's position as described in Section 3; or
(2) a change in Executive's principal office to a location
outside the Palm Beach-Stuart-Broward-Dade County, Florida area; or
(3) any reduction in the Executive's salary or any change in the
method of calculating Executive's Bonus Compensation hereunder; or
(4) a material breach of the Agreement by the Company; or
(5) a material reduction of the Executive's benefits under any
employee benefit plan, program or arrangement (for Executive
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
(6) failure by a successor company to assume the obligations
under the Agreement.
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Anything herein to the contrary notwithstanding, the Executive
shall give written notice to the Board of Directors of the Company
that the Executive believes an event has occurred which would result
in a Constructive Termination of the Executive's employment under this
Section 6(f), which written notice shall specify the particular act or
acts, on the basis of which the Executive intends to so terminate the
Executive'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 (1) through (6) above).
(g) Termination Following a Change of Control.
(1) 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 Executive shall have the right
to terminate the Executive'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
Executive's employment with the Company pursuant to this Section
6(g)(1), and, in any such event, such termination shall be deemed to
be a Termination by the Company Other than for Cause and the Executive
shall be entitled to such Compensation and Benefits as set forth in
Subsection 6(h) of this Agreement.
(2) 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 8-K, 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:
(A) any "person", other than the Executive, (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
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(C) there is a failure to elect three 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 Executive'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)(2) will not apply where the Executive gives the Executive's
explicit written waiver stating that for the purposes of this Section
6(g)(2) a Change in Control shall not be deemed to have occurred. The
Executive'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.
(3) 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 Executive under
this Agreement, for any reason other than for Cause as defined in
Section 6(c), or the Executive's employment is constructively
terminated as defined in Section 6(f), then, in any such event, such
termination shall be deemed to be a Termination by the Company Other
than for Cause and the Executive shall be entitled to such
Compensation and Benefits as set forth in Subsection 6(d) of this
Agreement.
(h) Compensation and Benefits Upon Termination of Executive
Employment. In the event of any termination of Executive's employment Other than
for Cause, or any termination of Executive's employment pursuant to Sections
6(d), 6(f) or 6(g), on the effective date of any such termination, the Executive
shall be entitled to receive the following:
(1) All life, disability and health insurance benefits to which
he was entitled to continue to receive thirty (30) days prior to the
Effective Date of the Settlement Agreement, for a period of two (2)
years following the effective date of such termination; provided that
in the Executive's sole discretion, the Executive may receive the cash
equivalent of all or any part of such life, disability and/or health
insurance benefits from the Company in lieu of receiving such
benefits; plus
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(2) Base Compensation equal to the Executive's annual Base Salary
immediately prior to the effective date of termination shall be paid
for the balance of the Term. All Base Compensation shall be payable to
the Executive by-weekly; provided that in the event that the Executive
is entitled to receive the Base Compensation as a result of a Change
in Control, at the Executive's option, the Executive may receive
either (i) a lump sum equal to the Base Compensation due to the
Executive pursuant to Section 6(h) reduced to present value, as set
forth in Section 280G of the Internal Revenue Code or (ii) bi-weekly.
(3) The Options for the purchase of 8,000,000 shares of Common
Stock shall be accelerated and fully vested as provided in Section
6(a) and (b) hereof.
7. Covenant Not to Compete and Non-Disclosure of Information.
a. Covenant Not to Compete. The Executive 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 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, in the event
the Executive's employment is terminated by reason of disability pursuant to
Section 6(b) or for Cause pursuant to Section 6(c), then the Executive agrees to
the following:
i. That during the Restricted Period (as hereinafter
defined) and within the Restricted Area (as hereinafter defined), the
Executive will not, individually or in conjunction with others,
directly or indirectly, engage in any Competitive 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 or
agent.
ii. That during the Restricted Period and within the
Restricted Area, the Executive 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.
b. Non-Disclosure of Information. In the event Executive's
employment has been terminated pursuant to either Section 6(b) or Section 6(c)
hereof, Executive agrees that, during the Restricted Period, Executive will not
knowingly use or disclose any Proprietary Information of the Company for the
Executive's own purposes or for the benefit of any entity engaged in Competitive
Business Activities. As used herein, the term "Proprietary Information" shall
mean trade secrets or confidential proprietary information of the Company which
are material to the conduct of the business of the Company. No information can
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be considered Proprietary Information unless the same is a unique process or
method material to the conduct of Company's Business, or is a customer list or
similar list of persons engaged in business activities with Company, or if the
same is otherwise in the public domain or is required to be disclosed by order
of any court or by reason of any statute, law, rule, regulation, ordinance or
other governmental requirement. Executive further agrees that in the event his
employment is terminated pursuant to Sections 6(b) or 6(c) above, all Documents
in his possession at the time of his termination shall be returned to the
Company at the Company's principal place of business.
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 partnerships, corporations, professional associations or other
business organizations for whom the Company has performed Business Activities.
e. Restrictive Period. The "Restrictive Period" shall be
deemed to be twelve (12) months following termination of the Executive's
employment with the Company as described Section 6(b) or 6(c) of this Agreement.
f. Restricted Area. The "Restricted Area" shall, if this
Agreement has been terminated pursuant to Section 6(b) or 6(c), be the States of
Florida.
g. Competitive Business Activities. The term "Competitive
Business Activities" as used herein shall be deemed to mean the Business.
h. Covenants as Essential Elements of this Agreement. It is
understood by and between the parties hereto that the foregoing covenants
contained in Sections 7(a) and (b) are essential elements of this Agreement, and
that but for the agreement by the Executive to comply with such covenants, the
Company would not have agreed to enter into this Agreement. Such covenants by
the Executive 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 Executive.
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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 Executive's
employment with the Company.
j. Remedies.
i. The Executive 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 a breach
thereof will cause irreparable harm to the Company. In recognition of this
fact, in the event of a breach by the Executive of any of the provisions of
Section 7(a) or (b), the Executive agrees that, in addition to any remedy
at law available to the Company, including, but not limited to monetary
damages, all rights of the Executive to payment or otherwise under this
Agreement and all amounts then or thereafter due to the Executive from the
Company under this Agreement may be terminated and the Company, without
posting any bond, shall be entitled to obtain, and the Executive 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 Executive 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 Executive 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 Executive's
employment with the Company, subject to all the provisions of Florida, Delaware
and Federal law and the Certificate of Incorporation and Bylaws of the Company
then in effect. Such reasonable expenses, including attorneys' fees, that may be
covered by the Certificate 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 Certificate of Incorporation and Florida law. To the extent that any
such payments by the Company pursuant to the Company's Certificate of
Incorporation and/or Bylaws may be subject to repayment by the Executive
pursuant to the provisions of the Company's Certificate of Incorporation or
Bylaws, or pursuant to Florida, Delaware or Federal law, such repayment shall be
due and payable by the Executive to the Company within three (3) 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
Executive's employment with the Company and as to which Executive has been
covered by such applicable provisions.
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9. Withholding. Anything to the contrary notwithstanding, all payments
required to be made by the Company hereunder to the Executive or the Executive'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 Executive to
the Executive'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.
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 Executive 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's 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 except where the General
Corporation Law of the State of Delaware would specifically apply. Anything in
this Agreement to the contrary notwithstanding, the Executive shall conduct the
Executive'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 Executive is located.
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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 Executive 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
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 EXECUTIVE ACKNOWLEDGES THAT THE EXECUTIVE 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
EVOLVE ONE, INC.
By: __________________________
Xxxx Xxxxxxxxxx, President
THE EXECUTIVE
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XXXXXXX XXXXX
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