Exhibit 10.14
Executive Employment Agreement between the Company and Xxxx X. Xxxxxxxxxxxx
Dated April 20, 2005
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
as of April 20, 2005 (the "Effective Date") by and between: (i) Speaking Roses
International, Inc., a Utah corporation having its principal place of business
at 000 Xxxx 000 Xxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 ("Speaking Roses"); and
(ii) Xxxx X. Xxxxxxxxxxxx, an individual, residing at 0000 X. Xxxxxxxxx Xxxxxx,
Xxxxx, Xxxx ("Executive") (with each of Speaking Roses and Executive being a
"Party"; and collectively, the "Parties") with reference to the following:
The principal terms and conditions of the employment will be as follows:
1. Term. The employment of the Executive by Speaking Roses pursuant to the
provisions of this Agreement shall commence on the Effective Date and expire
upon the third anniversary of the Effective Date, unless further extended or
sooner terminated as hereinafter provided (the "Employment Period"). On the
third anniversary of the Effective Date, and on each anniversary date of the
Effective Date thereafter, Employment Period shall, unless sooner terminated as
hereinafter provided, be automatically extended for an additional one year
period from the date thereof unless, at least 30 days before such anniversary
date, Speaking Roses shall have delivered to the Executive or the Executive
shall have delivered to Speaking Roses, written notice that the term of the
Executive's employment hereunder will not be extended beyond its existing term.
2. Duties. The Executive shall be employed as President and shall devote
substantially all the Executive's working time, attention and efforts to the
business and affairs of Speaking Roses. Other than personal business, investing
activities and consulting activities with Wasatch Education, Xxxxx College,
Phoenix Therapeutic Massage College and related entities, Executive shall not be
engaged in any other business or any other activity that interferes with his
ability to perform the duties assigned to him by Speaking Roses under this
Agreement, whether or not such activity is pursued for gain, profit or other
pecuniary advantage, without the prior written consent of the Chairman of the
Compensation Committee (the "Committee") of Speaking Roses' Board of Directors
(the "Board").
3. Base Salary. The Executive's base compensation shall be $150,000 annually
("Base Salary"), payable at periodic intervals in accordance with the Company's
payroll practices for salaried employees. The amount of such Base Salary shall
be reviewed by the Board on at least an annual basis and may be increased to
reflect inflation or such other adjustments as the Committee may deem
appropriate, but Base Salary, as so increased, may not be subsequently
decreased, except in connection with a salary reduction program implemented for
substantially all of Speaking Roses' executive officers.
4. Bonuses. During the Employment Period, the Executive shall be paid bonuses
pursuant to the formula as described on Appendix A. Any future bonuses shall be
based on criteria as deemed appropriate by the Committee.
5. Stock Options. Executive shall be eligible to receive stock options and stock
grants under the Speaking Roses' Equity Incentive Plan as determined by the
Committee.
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6. Termination. In addition to the termination of this Agreement pursuant to the
30-day notice provision of Paragraph 1, this Agreement and the employment
relationship created hereby may be terminated as set forth below.
(a) Discharge.
(i) Speaking Roses may terminate this Agreement and Executive's
employment at any time during the Employment Period, for any reason,
with or without Cause (as defined hereinafter). Such termination shall
be effective on the date of written notice of termination ("Date of
Termination"). Should Executive's employment be terminated by Speaking
Roses for Cause as defined below, Speaking Roses shall pay Executive
any unpaid compensation earned for services rendered through the Date
of Termination for Cause, together with payment for all accrued but
unused vacation benefits. As used herein, the term "Cause" shall
include termination by action of the Board because of: (1) Executive's
conviction of, or plea of nolo contendere to, a felony, or a crime
involving moral turpitude, or (2) Executive's willful failure or
refusal to follow reasonable and lawful written policies or directives
established by the Board or willful failure to attend to material
duties or obligations of Executive's position (other than failure
resulting from Executive's incapacity due to physical or mental
disability); provided, however, that in the case of any termination
pursuant to this clause, Speaking Roses shall give Executive at least
thirty (30) business days prior written notice of such failure to
perform and an opportunity to correct such performance deficiency; if
such performance deficiency is not corrected within the thirty (30)
business day period following such written notice from Speaking Roses
(or such other longer period set by the Board), then Speaking Roses may
immediately terminate Executive's employment by delivering written
notice of termination for cause to the Executive.
(ii) Should Executive's employment be terminated by Speaking Roses
during the Employment Period for any reason other than Cause, except
pursuant to the 30-day notice provision of Paragraph 1, then the
following severance benefits shall be provided to Executive: (A)
Executive's base salary as of the Date of Termination shall be paid to
Executive in the form of salary continuation payments on Speaking
Roses' regular paydays for the remainder of the Employment Period; (B)
for a period of twelve months following the Date of Termination,
Speaking Roses shall, at its sole expense, provide Executive and his
dependents with insurance benefits substantially similar to those to
which other senior executives of Speaking Roses are entitled through
payment of Executive's COBRA premiums; and (C) all stock options,
warrants, rights and other stock-related awards granted to Executive by
Speaking Roses shall continue to vest through the remaining Employment
Period (unless Executive has resigned pursuant to Paragraph 4(b)(2)
herein, in which case all stock options, warrants, rights and other
stock-related awards granted to Executive by Speaking Roses shall
become fully vested and non-forfeitable upon the Date of Termination
and each such stock option shall remain exercisable for the option
shares until the expiration of the option term.) The severance benefits
under this Paragraph 6(a)(ii) are conditioned upon Executive's
execution and non-revocation of a general release of claims against
Speaking Roses and its past and present officers, directors, employees,
agents shareholders, subsidiaries, parents, affiliated companies,
successors, and assigns.
(b) Resignation. Executive shall be entitled to terminate his
employment at any time for Good Reason as defined herein. Should Executive in
fact terminate his employment for Good Reason, then he shall become entitled to
the compensation and benefits provided in Paragraph 6(a)(ii) above as if he had
been discharged by Speaking Roses other than for Cause. For purposes of this
Paragraph, "Good Reason" shall mean the Executive's resignation by reason of (1)
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the material breach by Speaking Roses of one or more of its obligations under
this Agreement, , (2) a material diminution in Executive's responsibilities or
(3) more than a 20% reduction in Executive's level of compensation (including
base salary and fringe benefits). Executive's continued employment for a period
not in excess of nine months following any event described in this Paragraph
6(b) shall not constitute Executive's consent to, nor a waiver of Executive's
right to resign hereunder for Good Reason, with respect to any such breach,
Change in Control or event.
(c) Death. If the Executive dies during the Employment Period, the
Executive's employment shall terminate on the Executive's date of death and the
Executive's surviving spouse, or the Executive's estate if the Executive dies
without a surviving spouse, shall be entitled to the Executive's unpaid
compensation for the remainder of the employment period.
(d) Disability. Should Executive become disabled, as defined below, the
employment relationship created pursuant to this Agreement shall immediately
terminate, and no further compensation shall become payable to Executive
pursuant to Paragraphs 3 or 4. However, Speaking Roses shall be required to pay
Executive any unpaid compensation earned under Paragraph 2 for services rendered
through the date of his termination of employment, together with payment for all
accrued but unused vacation benefits. In addition, the termination of
Executive's employment by reason of such disability shall be deemed to be a
termination for other than Cause under Paragraph 6(a)(ii), and Executive shall,
accordingly, become entitled to the severance benefits set forth in Paragraph
6(a)(ii). For purposes of this Agreement, Executive shall be deemed to be
disabled in the event he is unable by reason of any physical or mental
impairment to perform the essential functions of his position, with or without
reasonable accommodation (excluding a leave of absence), for a period in excess
of one hundred eighty (180) consecutive days.
7. Change in Control: (a) For purposes of this Agreement, a "Change in Control"
shall mean the occurrence of any one of the following events" (i) any person
becomes the beneficial owner, directly or indirectly, of securities of Speaking
Roses representing fifty percent (50%) or more of the total combined voting
power of Speaking Roses' then-outstanding securities; or (ii) the majority of
the members of the Board ceases to be comprised of individuals who are members
of the Board on the date of this Agreement as the result of a merger,
acquisition or other corporate transaction or as the result of a shareholder
vote pursuant to a proxy solicitation by a person other than Speaking Roses or
pursuant to written shareholder consent; or (iii) the adoption by the Board of
Directors or shareholders of Speaking Roses of a resolution approving the merger
or consolidation of Speaking Roses with another entity and, as a result of which
merger or consolidation, either (A) Speaking Roses would not be the surviving
corporation following the merger or consolidation, or (B) the shareholders of
Speaking Roses would own less than a majority of the outstanding shares of
voting stock of Speaking Roses following the merger or consolidation; or (iv)
the adoption by the Board of Directors or shareholders of Speaking Roses of a
resolution approving the sale or other disposition of all or substantially all
of Speaking Roses' assets or the liquidation or dissolution of Speaking Roses.
(b) In the event of a Change in Control, the Executive will be entitled
to the following payments and benefits, provided that Executive remains in
compliance with his obligations under this Agreement: (i) the vesting of each
outstanding option or other right to shares held by the Executive under Speaking
Roses' stock option plans or otherwise shall automatically accelerate so that
each option shall be immediately exercisable for the total number of shares at
the time subject to that option and may be exercised for any or all of those
shares until the expiration of the option term; (ii) in the event that Executive
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is not offered a new contract by the acquiring or controlling entity or owner
that is at least as favorable as this Agreement for a term of not less than two
years, a separation payment equal to (A) two years of base salary; and (B) a
bonus equal to an annual bonus calculated at the percentage of target as
described on Appendix A using the percent of target attained during the most
recent fiscal quarter and (iii) continuation of all other benefits and
entitlements granted to the acquiring entities' executive officers for a period
of two years.
8. Vacation. In addition to Executive's Base Compensation and bonuses, Executive
will receive be entitled to paid vacation time per year in accordance with
Speaking Roses' vacation policy for other senior executives, but in no event
less than three weeks per year.
9. Benefits. Executive shall be entitled to all benefits available to other
senior executives through Speaking Roses' benefits plans.
10. Indemnification. To the maximum extent permitted by Speaking Roses' bylaws
and the laws of the State of Utah, Speaking Roses shall indemnify Executive and
hold Executive harmless from any costs or expenses incurred by him on account of
the fact he becomes a party, or is threatened to be made a party, to any
threatened, pending or contemplated action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was a director, officer, employee or agent of Speaking Roses or any parent or
subsidiary corporation. Such indemnifiable costs and expenses shall include,
without limitation, expenses (including attorneys' fees), judgments, fines and
settlement amounts actually and reasonably incurred by Executive in connection
with such action, suit or proceeding. Subject to all applicable legal
requirements, expenses reasonably incurred by Executive in investigating or
defending a civil or criminal action, suit or proceeding shall be paid by
Speaking Roses as invoices for such services are presented by Executive to
Speaking Roses. In any such matter, Executive shall be entitled to select
counsel of his own choice. To the maximum extent provided by law, Speaking Roses
shall obtain and maintain standard form directors' and officers' liability
insurance with responsible carriers and in reasonable amounts, and any other
additional insurance which may reasonably be obtained, covering to the extent
available, any liability of the kind described above and protecting Executive
against the costs and expenses described herein which are not for any reason
satisfied by Speaking Roses. The obligations herein shall bind any successor to
Speaking Roses (whether direct or indirect, by merger, consolidation or
otherwise).
11. Confidential Information, Invention Assignment And Non-Compete. Executive
shall execute simultaneously with the execution of this Agreement, the
Confidential Information, Invention Assignment, and Non-Compete Agreement in the
form attached hereto as Appendix B.
12. Governing Law. This Agreement is and shall be deemed to be a contract
entered into and made pursuant to the laws of the State of Utah (regardless of
Utah conflict of law principles or the residence, location, domicile, place of
formation or place of business of Executive or its constituent principals) and
shall in all respects be governed, construed, applied and enforced in accordance
with the laws of the State of Utah.
13. Severability. To the extent any provision of this Agreement is prohibited by
or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remainder of this Agreement.
14. Attorneys' Fees. In the event that either party hereunder institutes
arbitration or other legal proceedings in connection with its rights or
obligations under this Agreement, the prevailing party in such proceeding shall
be entitled to recover from the other party, all costs incurred in connection
with such proceeding, including reasonable attorneys' fees, together with
interest thereon from the date of demand at the rate of 12% per annum.
15. Successors. This Agreement shall inure to the benefit of, be binding upon
and be enforceable by, any successor, surviving or resulting corporation or
other entity to which all or substantially all of the business and assets of
Speaking Roses shall be transferred whether by merger, consolidation, transfer
or sale.
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16. Amendment. This Agreement may not be amended during its term, except by
written instrument executed by Speaking Roses and the Executive.
17. Entire Agreement. This Agreement sets forth the entire agreement between the
Executive and speaking roses with respect to the subject matter hereof, and all
prior oral or written agreements, negotiations, commitments and understandings
with respect thereto.
18. Notice. Notices given pursuant to this Agreement shall be in writing and
shall be deemed given when received, and if mailed, shall be mailed by United
States registered or certified mail, return receipt requested, addressee only,
postage prepaid, addressed as follows:
To Speaking Roses: To Executive:
------------------ -------------
Speaking Roses Xxxx Xxxxxxxxxxxx
Attn: Chief Executive Officer 0000 X. Xxxxxxxxx Xxxxxx
000 Xxxx 000 Xxxxx, Xxxxx 000 Xxxxx, Xxxx 00000
Xxxxxxxxx, Xxxx 00000
to the parties at the addresses set forth above or to such other address as one
party shall provide to the other pursuant hereto.
19. No Waiver. No waiver by either party at any time of any breach by the other
party of, or compliance with, any condition or provision of this Agreement to be
performed by the other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same time or any prior or subsequent time.
20. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
21. Joint Drafting; Construction. This Agreement has been drafted by both
Speaking Roses and Executive. The language used in this Agreement will be deemed
to be the language chosen by the parties to express their mutual intent, and no
rules of strict construction will be applied against any party.
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IN WITNESS WHEREOF, the Parties or their duly authorized
representatives have caused this EXECUTIVE EMPLOYMENT AGREEMENT to be executed
as of the Effective Date.
SPEAKING ROSES EXECUTIVE
By: /s/ Xxxxxx Xxxxxx /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxxxx Xxxxxx Xxxx X. Xxxxxxxxxxxx
Title: CEO
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APPENDIX A
Speaking Roses International, Inc.
Executive Bonus Compensation Formula
Projected US & International Gross Profit
Plan Bonus 2005 2006 2007
$ $ $
Achievement Pct% 7,809,394 42,268,090 56,940,714
---------------------------------------------------------------------------
100% 1.00% 78,094 422,681 569,407
90% 0.90% 70,285 380,413 512,466
80% 0.80% 62,475 338,145 455,526
70% 0.70% 54,666 295,877 398,585
60% 0.60% 46,856 253,609 341,644
50% 0.50% 39,047 211,340 284,704
40% 0.00% - - -
30% 0.00% - - -
20% 0.00% - - -
10% 0.00% - - -
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APPENDIX B
CONFIDENTIALITY, NON-COMPETITION AND
INVENTION ASSIGNMENT AGREEMENT
This CONFIDENTIALITY, NON-COMPETITION AND INVENTION ASSIGNMENT
AGREEMENT (the "Agreement"), effective as of April 20, 2005 (the "Effective
Date"), is entered into by and between SPEAKING ROSES INTERNATIONAL, INC., an
Utah Corporation (the "Company"), and the undersigned individual (the
"Individual"). The Company and Individual are referred to collectively herein as
the "Parties."
Recitals
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A. Individual is an employee of the Company or acts as an independent
contractor for the benefit of the Company and, in that capacity, may have access
to or may create certain Confidential Information, as defined below, of the
Company.
B. Individual recognizes that any unauthorized use or disclosure of
Confidential Information would cause serious injury to Company, and that the
Company's willingness to continue to retain Individual in his current capacity
depends upon Individual's commitment to protect Company's Confidential
Information and to comply with the provisions of this Agreement.
Agreement
---------
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Individual hereby
agree as follows.
1. Protection of the Confidential Information. At all times during and
after Individual's relationship with the Company, whether in the capacity as an
employee or as an independent contractor of the Company, Individual shall hold
all Confidential Information in confidence and shall protect it with utmost
care. Individual shall not disclose, retain, copy, or permit any unauthorized
person to disclose or copy any of the Confidential Information, except as may be
necessary for the conduct of the Company's business. Individual shall not use
any of the Confidential Information except as necessary to perform Individual's
duties on behalf of the Company as provided in this Agreement and in any
agreement between the Company and the Individual relating to the Individual's
duties and obligations to the Company. "Confidential Information" for purposes
of this Agreement includes, without limitation, discoveries, developments,
business and financing information, designs, improvements, inventions,
blueprints, structures, software, processes, computer programs, know-how, data,
techniques, formulas, marketing, and business plans and outlines, strategies,
budgets, forecasts, projections, unpublished financial statements, costs, fee
schedules, client and supplier lists, client and prospective client databases,
access codes and similar security information and procedures, and all patents,
copyrights, maskworks, trade secrets and other proprietary rights thereto of, or
used by, the Company. "Confidential Information" shall also include information
created, discovered or developed by Individual during the period of or arising
out of Individual's relationship with the Company, whether as an employee or in
the capacity of an independent contractor before or after the date hereof.
2. Exceptions. This Agreement shall not prevent the use or disclosure
by Individual of information that (a) is required by law to be disclosed, (b)
becomes a part of the public knowledge other than by a breach of an obligation
of confidentiality, or (c) is rightfully received from a third party and neither
the Company nor Individual is obligated to hold such information confidential.
3. Return of Confidential Information. Upon the Company's request, and
in any event upon termination of Individual's relationship with the Company for
any reason, Individual shall promptly return to Company all materials in
Individual's possession or control that contain or represent Confidential
Information, including but not limited to documents, drawings, diagrams, flow
charts, computer programs or files, memoranda, notes, and every other medium,
and all copies thereof. At the request of Company, Individual shall certify in
writing that he or she retains no Confidential Information.
4. Non-Competition.
(a) Acknowledgement. Individual acknowledges that (i) the Company
and/or its affiliated and subsidiary organizations are engaged in a variety of
business endeavors, including development of materials, processes and methods of
marking, embossing and otherwise identifying products (the "Business"); (ii) the
Business is conducted throughout the United States and is expected to be
conducted in one or more countries internationally; (iii) Individual's work for
the Company will give Individual access to trade secrets and confidential
8
information concerning the Company and the Business, including, without
limitation, all or a portion of the Company's Confidential Information; (iv) the
ability of the Company and its affiliates to continue the Business is likely to
be materially jeopardized and the value of the Company and its affiliates
reduced if Individual competes with, or assists other persons in competing, with
the Company and/or any of its affiliates.
(b) Covenant Not to Compete. For a period of five years from the date
of any termination of Individual's employment (if Individual is, as of the date
hereof, an employee of the Company) or independent contractor status (if
Individual is, as of the date hereof, an independent contractor of the Company)
for any reason, Individual shall not anywhere in the world, accept employment
with (or serve in the capacity as a partner, shareholder, owner, principal,
agent, director, affiliate, advisor, consultant or other capacity) or render any
service to a direct competitor of the Company or create or engage in creating or
conducting a business competing with the Business.
(c) Enforceability. If any court shall determine that the duration,
geographic limitations, subject or scope of any restriction contained in this
Section 4 is unenforceable, it is the intention of the parties that this Section
4 shall not thereby be terminated but shall be deemed amended to the extent
required to make it valid and enforceable, such amendment to apply only with
respect to the operation of this Section 4 in the jurisdiction of the court that
has made the adjudication.
5. Assignment of Inventions. Individual agrees to disclose and to
assign immediately to the Company, or to any persons designated by the Company,
or at the Company's option, any of the Company's successors or assigns, all
inventions, novel applications or improvements which are or were made, conceived
or reduced to practice by Individual, whether acting independently or with
others, during the course of Individual's relationship with the Company, and
which (i) were made, conceived of or first reduced to practice in the
performance of any duties assigned to or undertaken by the Individual on behalf
of the Company; or (ii) were made, conceived of or first reduced to practice
with the use of the Company's time, material, facilities or funds, or (iii) are
related to or are suggested by any subject matter of the Company with which the
Individual comes into contact while performing services for the Company; or (iv)
relate to any investigations or obligations undertaken by the Company, the
details of which the Individual becomes aware because of services performed by
the Individual for the Company (collectively, "Inventions").
(a) This Agreement shall not diminish the effect or binding nature of
any prior invention assignments made to the Company by Individual.
(b) Without limiting the foregoing, at all times the Company (or its
nominee) shall have the right to obtain, for its own benefit and in its own name
(and entirely at its expense) patents and patent applications of any type, and
all renewals and extensions of such patents and applications for the Inventions.
(c) In order to protect the right, title and interest of the Company
(or its successors, assigns or nominees) in such Inventions or, in connection
with any applications or patents necessary to convey rights to those Inventions
to the Company, Individual shall, without further compensation, execute and
deliver all papers and instruments and perform such further acts, including
giving testimony or furnishing evidence in the prosecution or defense of
appeals, interferences, suits and controversies relating to any of the
Inventions, as may be deemed necessary by the Company.
(d) All works of authorship, inventions, processes improvements,
trademarks, trade dresses, trade secrets, know-how, and all other creations
conceived or developed in whole or in part by Individual relating to Inventions,
as well as all fixations, instantiations, reductions to practice, and derivative
works thereof shall hereby be deemed to be specially commissioned "works made
for hire" by Individual for the Company within the meaning of such term as used
in the U.S. Copyright Act of 1976 (17 U.S.C. ss. 101 et seq.) as amended.
Inventions shall under no circumstances be deemed to be works of joint
authorship or any other designation tending to imply that Individual has or
retains ownership or authorship rights thereinor thereto. To the extent that any
such rights vest initially with Individual by the operation of law or for any
other reason (if, for example, any Invention is deemed not to be "works made for
hire"), for good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged and without further compensation, Individual hereby
perpetually and irrevocably assigns, transfers, and quitclaims all such rights
to the Company.
6. Additional Cooperation with Respect to Inventions. Individual shall
(a) treat all information with respect to Inventions as Confidential Information
within the meaning of this Agreement; (b) keep complete and accurate records of
the Inventions, which records will be the property of Company; (c) testify in
any proceedings or litigation related to the Inventions; and (d) in case the
Company will desire to keep secret any Inventions or will for any reason decide
not to have letters patent applied for thereon, refrain from disclosing the
Invention and from applying from letters patent thereon.
7. Assistance of the Company. Without limiting any of the foregoing,
Individual shall assist Company in every way deemed necessary or desirable by
Company (but at the Company's expense) to obtain and enforce patents,
copyrights, trademarks and other rights and protections relating to any
Confidential Information and Inventions in any and all countries, and to that
end Individual will execute all documents for use in obtaining and enforcing
such patents, copyrights, trademarks and other rights and protections as Company
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may desire, together with any assignments thereof to Company or persons
designated by it. If Company is unable for any reason to secure Individual's
signature to any document required to apply for or execute any patent,
copyright, maskwork or other applications with respect to any Inventions
(including improvements, renewals, extensions, continuations, divisions or
continuations in part thereof), Individual hereby irrevocably designates Company
and its duly authorized officers and agents as Individual's agents and
attorneys-in-fact and on Individual's behalf to execute and file any such
application and to do all other lawfully permitted acts to further the
prosecution and issuance of patents, copyrights, maskworks or other rights
thereon with the same legal force and effect as if executed by Individual.
Individual's obligation to assist the Company shall continue beyond the
termination of Individual's relationship with the Company, but Company shall
compensate Individual at a reasonable rate after Individual's or Individual
termination for time actually spent by Individual at the Company's request on
such assistance.
8. No Conflicts With Prior Obligations. Individual hereby represents
and warrants that Individual's relationship with the Company and Individual's
performance of Individual's obligations under this Agreement will not conflict
with any obligations of any nature or type that Individual has or may have to
any third party or third parties. Individual will not disclose to Company or use
in Company's behalf any confidential or proprietary information belonging to a
third party, unless the third party has consented to the disclosure or use of
the information. This Agreement supercedes any prior agreement the Individual
and the Company have entered into regarding the subject matter hereof.
9. Covenant Not to Solicit. For a period of one (1) year from the date
of any termination of Individual's relationship with the Company for any reason:
(a) Individual shall not solicit for employment, attempt to employ, or
assist any other person or entity in employing or soliciting for employment, any
employee or representative of Company, either for Individual or for any other
entity; and
(b) Individual shall not solicit or influence or attempt to solicit or
influence any client of the Company, customer of the Company, either directly or
indirectly, in any way that directs or is intended or is likely to direct or
cause such client, customer or other person not to purchase the Company's
products and /or services.
10. Equitable Remedies. Individual acknowledges that breach of this
Agreement would cause Company to suffer irreparable harm for which monetary
damages would be inadequate compensation. Individual agrees that Company will be
entitled to an injunction restraining any actual or threatened breach of this
Agreement, or specific performance, if applicable, in addition to any monetary
damages. Individual hereby waives the requirement of any surity or bond by
Company in any such proceeding.
11. Employment Relationship. This Agreement shall not be deemed to
create, extend, modify or terminate any employment relationship between the
Company and the Individual.
12. Entire Agreement. This Agreement sets forth the entire agreement of
the parties with respect to the subject matter
hereof, and supersedes all prior agreements, whether written or oral.
13. Waiver and Amendment. This Agreement may be amended only by a
writing signed by both parties hereto. No oral waiver, amendment or modification
of this Agreement shall be effective under any circumstances. The waiver by the
Company of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any other or subsequent breach of this Agreement by
Individual.
14. Term of Agreement. This Agreement will remain in force during
Individual's relationship with the Company and will continue thereafter until
all Confidential Information acquired by Individual becomes part of the public
knowledge other than through a violation of this Agreement.
15. Successors and Assigns. This Agreement may not be assigned by
Individual, but the Company may assign any or all of its rights under this
Agreement to any affiliate or subsidiary company of the Company, so long as the
Company remains liable for the performance by that affiliate or subsidiary of
the payment obligations of the Company hereunder, or to any entity that acquires
all or substantially all of the business or assets of the Company. Except as
provided in the preceding sentence, this Agreement shall be binding upon, and
inure to the benefit of, the parties and their respective personal
representatives, successors and assigns.
16. Severability. Should any provision of this Agreement be considered
unenforceable by a court of law, the remainder of this Agreement shall remain in
force to the fullest extent permitted by law.
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17. Governing Law. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of Utah, without giving effect to
principles of conflicts of law. Individual hereby consents to the personal
jurisdiction of the state and federal courts located in the State of Utah in
connection with any litigation related to this Agreement and agrees that the
exclusive venue for any such litigation shall be in such courts located in the
State of Utah.
IN WITNESS WHEREOF, the Parties have executed and delivered this
Agreement on the dates set forth below, to be effective as of the Effective
Date.
SPEAKING ROSES INTERNATIONAL, INC.
Date: April 20, 2005 /s/ Xxxx X. Xxxxxxxxxxxx
-------------- --------------------------------
Xxxx X. Xxxxxxxxxxxx, Individual
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