AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.26
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Please read this Agreement carefully. This Agreement describes the basic legal and ethical
responsibilities that you are required to observe as an executive exposed to highly sensitive
technology and strategic information. Consult with your legal counsel if all the Term or Renewal
Period and provisions of this Agreement are not fully understood by you.
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made as of the 30th day of
December, 2008, by and between XXXXX ENTERPRISES, INCORPORATED, a Florida corporation (the
“Company”), and Xxxxxxx X. Xxxxx (the “Executive”).
WITNESSETH:
WHEREAS, the Executive currently serves as President and Chief Executive Officer of the
Company subject to the terms and conditions of the Employment Agreement dated August 1, 2004, as
amended (the “Prior Agreement”);
WHEREAS, the parties now desire to amend and restate the Prior Agreement to, among other
things, bring the terms of the Prior Agreement into compliance with the requirements of Section
409A of the Internal Revenue Code of 1986, as amended (the “Code”); and
WHEREAS, the Executive desires to be employed by the Company on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto covenant and agree as follows:
1. Employment and Duties. Subject to the terms and conditions of this Agreement, the
Company shall employ the Executive during the Term or Renewal Period(s) (as hereinafter defined) in
the positions of President and Chief Executive Officer (“CEO”). As President and CEO, the
Executive shall report directly to the Company’s Board of Directors and shall render to the Company
such management and policy-making services of the type customarily performed by persons serving in
similar capacities with other employers that are similar to the Company, together with such other
duties with which he is charged by the Company’s By-laws and subject to the overall direction and
control of the Company Board of Directors. The Executive accepts such employment and agrees to
devote his best efforts and entire business time, skill, labor, and attention to the performance of
such duties. The Executive agrees to promptly provide a description of any other commercial duties
or pursuits engaged in by the Executive to the Company’s Board of Directors. If the Board of
Directors determines in good faith that such activities conflict with the Executive’s performance
of his duties hereunder, the Board of Directors shall notify Executive within thirty (30) days and
the Executive shall promptly cease such activities to the extent as directed by the Board of
Directors. If the Board of Directors does not provide such notice, Executive shall be free to
engage in such commercial duties or pursuits.
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It is acknowledged and agreed that such description shall be made regarding any such activities in
which the Executive owns more than 5% of the ownership of the organization or which may be in
violation of Section 5 hereof, and that the failure of the Executive to provide any such
description shall enable the Company to terminate the Executive for Cause (as provided in Section
6(c) hereof). The Company agrees to hold any such information provided by the Executive
confidential and not disclose the same to any person other than a person to whom disclosure is
reasonably necessary or appropriate in light of the circumstances. In addition, the Executive
agrees to serve without additional compensation if elected or appointed to any office or position,
including as a director, of the Company or any subsidiary or affiliate of the Company; provided,
however, that the Executive shall be entitled to receive such benefits and additional compensation,
if any, that is paid to executive officers of the Company in connection with such service.
2. Term or Renewal Period. Subject to the Term or Renewal Period(s) and conditions of
this Agreement, including, but not limited to, the provisions for termination set forth in Section
6 hereof, the employment of the Executive under this Agreement shall commence on the effective date
hereof and shall continue until July 31, 2009 (such Term shall herein be defined as the “Term”).
Provided, however, that this Agreement shall renew automatically for successive one (1) year
periods (“Renewal Periods”) unless either party gives written notice of termination at least that
number of days set forth on Exhibit A before the end of the Term or Renewal Period, as applicable
(the “Renewal Notice Period”). The Executive agrees that some portions of this Agreement,
including Sections 4, 5, 6 and 10 hereof, will remain in force after the termination of this
Agreement.
3. Compensation.
(a) Base Salary and Bonus. As compensation for the Executive’s services under this
Agreement, the Executive shall receive and the Company shall pay a weekly base salary set forth on
Exhibit A. Such base salary may be increased but not decreased during the Term or Renewal Period
in the Company’s discretion based upon the Executive’s performance and any other factors the
Company deems relevant. Such base salary shall be payable in accordance with the policy then
prevailing for the Company’s executives. In addition to such base salary, the Executive shall be
entitled during the Term or Renewal Period to a performance bonus and shall be eligible to
participate in and receive payments or awards from all other bonus and other incentive
compensation, stock option and restricted stock plans as may be adopted by the Company, all as
determined by the Compensation Committee of the Board of Directors in its sole discretion, and in
each case payable to Executive in accordance with the terms and conditions of the applicable plan.
(b) Payments. All amounts paid pursuant to this Agreement shall be subject to
withholding or deduction by reason of the Federal Insurance Contribution Act, federal income tax,
state and local income tax, if any, and comparable laws and regulations.
(c) Other Benefits. The Executive shall be reimbursed by the Company for all
reasonable and customary travel and other business expenses incurred by the Executive in the
performance of the Executive’s duties hereunder in accordance with the Company’s standard
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policy regarding expense verification practices. The Executive shall be entitled to that
number of weeks paid vacation per year that is available to other executive officers of the Company
in accordance with the Company’s standard policy regarding vacations and such other fringe benefits
as may be set forth on Exhibit A and shall be eligible to participate in such pension, life
insurance, health insurance, disability insurance, and other executive benefits plans, if any,
which the Company may from time to time make available to its executive officers generally.
Benefits under such plans, if any, shall be paid or provided to Executive in accordance with the
terms and conditions of the applicable plan.
4. Confidential Information.
(a) The Executive has acquired and will acquire information and knowledge respecting the
intimate and confidential affairs of the Company, including, without limitation, confidential
information with respect to the Company’s technical data, research and development projects,
methods, products, software, financial data, business plans, financial plans, customer lists,
business methodology, processes, production methods and techniques, promotional materials and
information, and other similar matters treated by the Company as confidential (the “Confidential
Information”). Accordingly, the Executive covenants and agrees that during the Executive’s
employment by the Company (whether during the Term or Renewal Period hereof or otherwise) and
thereafter, the Executive shall not, without the prior written consent of the Company, disclose to
any person, other than a person to whom disclosure is reasonably necessary or appropriate in
connection with the performance by the Executive of the Executive’s duties hereunder, any
Confidential Information obtained by the Executive while in the employ of the Company.
(b) The Executive agrees that all memoranda; notes; records; papers or other documents;
computer disks; computer, video or audio tapes; CD-ROMs; all other media and all copies thereof
relating to the Company’s operations or business, some of which may be prepared by the Executive;
and all objects associated therewith in any way obtained by the Executive shall be the Company’s
property. This shall include, but is not limited to, documents; computer disks; computer, video
and audio tapes; CD-ROMs; all other media and objects concerning any technical data, methods,
products, software, research and development projects, financial data, financial plans, business
plans, customer lists, contracts, price lists, manuals, mailing lists, advertising materials; and
all other materials and records of any kind that may be in the Executive’s possession or under the
Executive’s control. The Executive shall not, except for the Company’s use, copy or duplicate any
of the aforementioned documents or objects, nor remove them from the Company’s facilities, nor use
any information concerning them except for the Company’s benefit, either during the Executive’s
employment or thereafter. The Executive covenants and agrees that the Executive will deliver all
of the aforementioned documents and objects, if any, that may be in the Executive’s possession to
the Company upon termination of the Executive’s employment, or at any other time at the Company’s
request.
(c) In any action to enforce or challenge these Confidential Information provisions, the
prevailing party is entitled to recover its attorney’s fees and costs.
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5. Covenant Not-to-Compete and No Solicitation. Executive recognizes that the Company
is in the business of employing individuals to provide specialized and technical services to the
Company’s Clients. The purpose of these Covenant Not-to-Compete and No Solicitation provisions are
to protect the relationship which exists between the Company and its Client while Executive is
employed and after Executive leaves the employ of the Company. The consideration for these
Covenant Not-to-Compete and No Solicitation provisions is the Executive’s employment with the
Company.
(a) Executive acknowledges the following:
(1) The Company expended considerable resources in obtaining contracts with its
Clients;
(2) The Company expended considerable resources to recruit and hire employees who could
perform services for its Clients;
(3) Through his employ with the Company, Executive will develop a substantial
relationship with the Company’s existing or potential Clients, including, but not limited
to, being the sole or primary contact between the Client and the Company;
(4) Executive will be exposed to valuable confidential business information about the
Company, its Clients, and the Company’s relationship with its Client;
(5) By providing services on behalf of the Company, Executive will develop and enhance
the valuable business relationship between the Company and its Client;
(6) The relationship between the Company and its Client depends on the quality and
quantity of the services Executive performs;
(7) Through employment with the Company, Executive will increase his opportunity to
work directly for the Client or for a competitor of the Company; and
(8) The Company will suffer irreparable harm if Executive breaches these Covenant
Not-to-Compete and No Solicitation provisions of this Agreement.
(b) Executive agrees that:
(1) The relationship between the Company and its Client (developed and enhanced when
the Executive performs services on behalf of the Company) is a legitimate business interest
for the Company to protect;
(2) The Company’s legitimate business interest is protected by the existence and
enforcement of these Covenant Not-to-Compete and No Solicitation provisions;
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(3) The business relationship which is created or exists between the Company and its
Client, or the goodwill resulting from it, is a business asset of the Company and not the
Executive; and
(4) Executive will not seek to take advantage of opportunities which result from his
employment with the Company and that entering into the Agreement containing Covenant
Not-to-Compete and No Solicitation provisions is reasonable to protect the Company’s
business relationship with its Clients.
(c) Restrictions on Executive. During the Term or Renewal Period(s) of this Agreement
and for a period of one (1) year after the termination of this Agreement, for whatever reason,
whether such termination was by the Company or the Executive, voluntarily or involuntarily, and
whether with or without cause, Executive agrees that he/she shall not, as a principal, employer,
stockholder, partner, agent, consultant, independent contractor, employee, or in any other
individual or representative capacity:
(1) Directly or indirectly engage in, continue in, or carry on the business of the
Company or any business substantially similar thereto, including owning or controlling any
financial interest in any corporation, partnership, firm, or other form of business
organization which competes with or is engaged in or carries on any aspect of such business
or any business substantially similar thereto;
(2) Consult with, advise, or assist in any way, whether or not for consideration of any
kind, any corporation, partnership, firm, or other business organization which is now,
becomes, or may become a competitor of the Company in any aspect of the Company’s business
during the Executive’s employment with the Company, including, but not limited to,
advertising or otherwise endorsing the products of any such competitor or loaning money or
rendering any other form of financial assistance to or engaging in any form of transaction
whether or not on an arm’s length basis with any such competitor;
(3) Provide or attempt to provide or solicit the opportunity to provide or advise
others of the opportunity to provide any services of the type Executive performed for the
Company or the Company’s Clients (regardless of whether and how such services are to be
compensated, whether on a salaried, time and materials, contingent compensation, or other
basis) to or for the benefit of any Client (i) to which Executive has provided services in
any capacity on behalf of the Company, or (ii) to which Executive has been introduced to or
about which the Executive has received information through the Company or through any Client
from which Executive has performed services in any capacity on behalf of the Company;
(4) Retain or attempt to retain, directly or indirectly, for itself or any other party,
the services of any person, including any of the Company’s employees, who were providing
services to or on behalf of the Company while Executive was employed by the Company and to
whom Executive has been introduced or about whom Executive has
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received information through the Company or through any Client for which Executive has
performed services in any capacity on behalf of the Company;
(5) Engage in any practice, the purpose of which is to evade the provisions of this
Agreement or to commit any act which is detrimental to the successful continuation of or
which adversely affects the business or the Company; provided, however, that the foregoing
shall not preclude the Executive’s ownership of not more than 2% of the equity securities of
a company whose securities are registered under Section 12 of the Securities Exchange Act of
1934, as amended;
(6) For purpose of these Covenant Not-to-Compete and No Solicitation provisions, Client
includes any subsidiaries, affiliates, customers, and clients of the Company’s Clients. The
Executive agrees that the geographic scope of this Covenant Not-to-Compete shall extend to
the geographic area where the Company’s Clients conduct business at any time during the Term
or Renewal Period(s) of this Agreement. For purposes of this Agreement, “Clients” means any
person or entity to which the Company provides or has provided within a period of one (1)
year prior to the Executive’s termination of employment, labor, materials or services for
the furtherance of such entity’s or person’s business or any person or entity that within
such period of one (1) year the Company has pursued or communicated with for the purpose of
obtaining business for the Company.
(d) Enforcement. These Covenant Not-to-Compete and No Solicitation provisions shall
be construed and enforced under the laws of the State of Florida. In the event of any breach of
this Covenant Not-to-Compete, the Executive recognizes that the remedies at law will be inadequate,
and that in addition to any relief at law which may be available to the Company for such violation
or breach and regardless of any other provision contained in this Agreement, the Company shall be
entitled to equitable remedies (including an injunction) and such other relief as a court may grant
after considering the intent of this Section 5. It is further acknowledged and agreed that the
existence of any claim or cause of action on the part of the Executive against the Company, whether
arising from this Agreement or otherwise, shall in no way constitute a defense to the enforcement
of this Covenant Not-to-Compete, and the duration of this Covenant Not-to-Compete shall be extended
in an amount which equals the time period during which the Executive is or has been in violation of
this Covenant Not-to-Compete. In the event a court of competent jurisdiction determines that the
provisions of this Covenant Not-to-Compete are excessively broad as to duration, geographic scope,
prohibited activities or otherwise, the parties agree that this covenant shall be reduced or
curtailed only to the extent necessary to render it enforceable.
(e) In an action to enforce or challenge these Covenant Not-to-Compete and No Solicitation
provisions, the prevailing party is entitled to recover its attorney’s fees and costs.
(f) By signing this Agreement, the Executive acknowledges that he/she understands the effects
of these Covenant Not-to-Compete and No Solicitation provisions and agrees to abide by them.
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6. Termination
(a) Death. The Executive’s employment hereunder shall terminate upon his death.
(b) Disability. If during the Term or Renewal Period(s) the Executive becomes
physically or mentally disabled in accordance with the terms and conditions of any disability
insurance policy covering the Executive, or, if due to such physical or mental disability the
Executive becomes unable for a period of more than six (6) consecutive months to perform his duties
hereunder on substantially a full-time basis as determined by the Company in its sole reasonable
discretion, the Company may, at its option, terminate the Executive’s employment hereunder upon not
less than thirty (30) days’ written notice so long as the terms of any disability insurance policy,
then in effect provide for Executive to receive disability payments from that date forward.
(c) Cause. The Company may terminate the Executive’s employment hereunder for Cause
effective immediately upon notice. For purposes of this Agreement, the Company shall have “Cause”
to terminate the Executive’s employment hereunder: (i) if the Executive engages in conduct which
has caused or is reasonably likely to cause demonstrable and serious injury to Company; (ii) if the
Executive is convicted of a felony as evidenced by a binding and final judgment, order, or decree
of a court of competent jurisdiction; (iii) for the Executive’s failure or refusal to perform his
duties or responsibilities hereunder as determined by the Company’s Board of Directors in good
faith, if such failure or refusal continues for a period of ten (10) days after written notice of
the same to the Executive; provided, however, that the Executive also shall be given an opportunity
to explain such failure or refusal to the Board of Directors (but not the right to address the
Board of Directors more than once for any particular action (or series of actions) or omission (or
series of omissions); (iv) for gross incompetence; (v) for the Executive’s violation of this
Agreement, including, without limitation, Section 5 hereof; (vi) for chronic absenteeism; (vii) for
use of illegal drugs; (viii) for insobriety by the Executive while performing his or her duties
hereunder; and (ix) for any act of dishonesty or falsification of reports, records, or information
submitted by the Executive to the Company.
(d) Termination by the Executive. The Executive may terminate his employment
hereunder at any time and for any reason by delivering written notice of termination to the
Company. However, if the Executive terminates his employment for Good Reason (as defined below),
such termination shall be deemed to be a termination by the Company without Cause and, therefore, a
breach of this Agreement by the Company. For purposes of this Agreement, the term “Good Reason”
shall mean (i) a Change of Control of the Company (as defined in Section 7 hereof), (ii) a good
faith determination by the Executive that there has been a breach of this Agreement by the Company,
(iii) a material adverse change in the Executive’s working conditions or status, (iv) the deletion
of, or change in, either of the following titles of Executive: CEO or President, (v) a significant
relocation of the Executive’s principal office, (vi) a significant increase in travel requirements,
or (vii) an impairment of the Executive’s health to an extent that makes the continued performance
of his duties hereunder hazardous to his physical or mental health or his life. If the Executive
desires to terminate his employment for Good Reason, he shall deliver written notice of termination
to the Board of Directors indicating in reasonable detail the facts and circumstances alleged to
provide a basis for such termination and shall cease
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performing the Executive’s duties hereunder on the date which is thirty (30) days after delivery of
the notice, which date also shall be the date of termination of the Executive’s employment.
(e) Payments Upon Termination. In the event of a termination of the Executive’s
employment pursuant to Section 6 or by the Executive, all payments and Company benefits to the
Executive hereunder, except the payments (if any) provided below, shall immediately cease and
terminate. In the event of an early termination or non-renewal by the Company of the Executive’s
employment with the Company for any reason other than pursuant to Section 6(a), (b) or (c), or an
voluntary termination by Executive of his employment for Good Reason pursuant to Section 6(d), the
Company shall pay the Executive an amount equal to the Liquidated Damages defined in Section 6(f)
below (in lieu of actual damages) for the early termination or non-renewal of his employment. In
the event of a termination of the Executive’s employment by the Company for any reason other than
pursuant to Section 6(a), (b) or (c), or Executive’s voluntary termination for Good Reason pursuant
to Section 6(d), the Covenant Not-to-Compete set forth in Section 5 hereof shall remain in full
force and effect for the period set forth in Section 6(f) below. If the Company terminates the
Executive’s employment pursuant to Section 6(a), (b), or (c) or the Executive voluntarily
terminates such employment other than for Good Reason pursuant to Section 6(d), the Executive shall
not be entitled to any Liquidated Damages and the Covenant Not-to-Compete set forth in Section 5
hereof shall remain in full force and effect as set forth in Section 6(f) below. Notwithstanding
anything to the contrary herein contained, and in addition to any other compensation to which the
Executive may be entitled to receive pursuant to this Agreement, the Executive shall receive all
compensation and other benefits to which he or she was entitled under this Agreement or otherwise
as an executive of the Company through the termination date, payable to Executive in accordance
with this Agreement or the applicable plan.
(f) Liquidated Damages and Non-Competition/Solicitation.
(1) Liquidated Damages Amount. Except as provided in below, the Liquidated
Damages (“Liquidated Damages”) amount, if due as provided above, shall be equal to the
weekly amount stated as Base Salary on Exhibit A, multiplied by one hundred and four (104)
weeks.
In the event of termination of the Executive’s employment pursuant to Section 6(d)(i),
Liquidated Damages shall be equal to (x) the weekly amount stated as Base Salary on Exhibit
A, multiplied by one hundred fifty six (156) weeks, plus (y) an amount determined by
multiplying the annual Target Bonus designated or otherwise indicated for the Executive in
the year such change of control occurs by a factor of three (3). The Target Bonus amount
shall be determined under the performance based bonus plan in which the Executive is then
participating. Finally, in the event of termination of the Executive’s employment pursuant
to Section 6(d)(i), all vesting periods relating to stock options, stock grants or any other
similar type of equity incentive and/or compensation program shall immediately accelerate
and be fully vested and exercisable at the option of the Executive upon the event of
termination.
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(2) Payment Terms. Except as provided below, the amount of Liquidated Damages
determined in accordance with Section 6(f)(1) shall be paid biweekly in equal installments
over fifty-two (52) weeks, commencing immediately upon Executive’s separation from service.
Notwithstanding the foregoing, if Executive is a Specified Employee (as defined below)
on the date of Executive’s separation from service (as defined below) (the “Severance
Date”), to the extent that Executive is entitled to receive any benefit or payment upon such
separation from service under this Agreement that constitutes deferred compensation within
the meaning of Section 409A of the Code before the date that is six (6) months after the
Severance Date, such benefits or payments shall not be provided or paid to Executive on the
date otherwise required to be provided or paid. Instead, all such amounts shall be
accumulated and paid in a single lump sum to Executive on the first business day after the
date that is six (6) months after the Severance Date (or, if earlier, within fifteen (15)
days following Executive’s date of death). If Executive is required to pay for a benefit
that is otherwise required to be provided by the Company under this Agreement by reason of
this paragraph, Executive shall be entitled to reimbursement for such payments on the first
business day after the date that is six (6) months after the Severance Date (or, if earlier,
within fifteen (15) days following Executive’s date of death). All benefits or payments
otherwise required to be provided or paid on or after the date that is six (6) months after
the Severance Date shall not be affected by this paragraph and shall be provided or paid in
accordance with the payment schedule applicable to such benefit or payment under this
Agreement. It is intended that each installment under this Agreement be regarded as a
separate “payment” for purposes of Section 409A of the Code. This paragraph is intended to
comply with the requirements of Section 409A(a)(2)(B)(i) of the Code.
(3) The provisions of Section 5 (the “Non-Competition/Solicitation Provisions”) shall
survive the early termination of this Agreement, by either party, and for any reason, for a
period of one hundred and four (104) weeks following termination. Notwithstanding anything
herein to the contrary, the Non-Solicitation restrictions set forth in Section 5(c)(4) shall
survive the termination of this Agreement and remain in effect for one hundred and four
(104) full weeks following termination.
(g) Condition Precedent to Receipt of Liquidated Damages. The Executive expressly
agrees that in the event of a termination of this Agreement prior to the expiration of the Term or
Renewal Period, Executive will execute an agreement containing the waiver and release provisions
set forth on Exhibit “B.” The Executive agrees and acknowledges that the execution of such an
agreement upon termination prior to the expiration of the Term or Renewal Period, is a condition
precedent to the obligation of the Company to pay any Liquidated Damages hereunder. If the
Executive has not executed such an agreement with all periods for revocation thereof expired as of
the date that is ninety (90) days after the date of employment termination (“Required Release
Date”), the Executive shall forfeit the right to receive the Liquidated Damages. To the extent
necessary to comply with Section 409A of the Code, if the date of employment termination and the
Required Release Date are in two separate taxable years, any payment of Liquidated Damages that
constitutes deferred compensation within the meaning of
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Section 409A of the Code shall be payable on the later of (i) the date such payment is otherwise
payable under this Agreement, or (ii) the first business day of such second taxable year. The
provisions set forth in Exhibit “B” provide for the release and waiver of important rights and/or
claims that the Executive might have against the Company at the time of any early termination of
this Agreement. The Executive hereby represents and warrants that he/she has read the attached
Exhibit “B” and fully and completely understands the provisions thereof.
(h) Section 409A Provisions.
(1) Separation from Service. To the extent necessary to comply with Section
409A of the Code, references to “termination of employment,” “separation from service” or
variations thereof in this Agreement shall mean the Executive’s “separation from service”
from his employer within the meaning of Section 409A(a)(2)(A)(i) of the Code and the default
rules of Treasury Regulations Section 1.409A-1(h). For this purpose, Executive’s “employer”
is the Company and every entity or other person which collectively with the Company
constitutes a single service recipient (as that term is defined in Treasury Regulations
Sections 1.409A-1(g)) as the result of the application of the rules of Treasury Regulations
Sections 1.409A-1(h)(3).
(2) Specified Employee. For purposes of this Agreement, “Specified Employee”
means a “specified employee” of the service recipient that includes the Company (as
determined under Treasury Regulations Sections 1.409A-1(g)) within the meaning of Section
409A(a)(2)(B)(i) of the Code and Treasury Regulations Section 1.409A-1(i), as determined in
accordance with the procedures adopted by such service recipient that are then in effect,
or, if no such procedures are then in effect, in accordance with the default procedures set
forth in Treasury Regulations Section 1.409A-1(i).
7. Change in Control. For purposes of Section 6(d) of this Agreement, a Change of
Control shall be deemed to have occurred if the event set forth in any one of the following
paragraphs shall have occurred:
(i) any person or entity, or group thereof acting in concert (a “Person”) (other than
(A) the Company or any of its subsidiaries, (B) a trustee or other fiduciary holding
securities under any employee benefit plan of the Company or any of its subsidiaries, (C) an
underwriter temporarily holding securities pursuant to an offering of such securities, or
(D) a corporation owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock in the Company), being or
becoming the “beneficial owner” (as such term is defined in Securities and Exchange
Commission (“SEC”) Rule 13d-3 under the Exchange Act) of securities of the Company which,
together with securities previously owned, confer upon such person, entity or group the
combined voting power, on any matters brought to a vote of shareholders, of twenty percent
(20%) or more of the then outstanding shares of voting securities of the Company; or
(ii) the sale, assignment or transfer of assets of the Company or any subsidiary or
subsidiaries, in a transaction or series of transactions, if the aggregate consideration
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received or to be received by the Company or any such subsidiary in connection with
such sale, assignment or transfer is greater than fifty-one percent (51%) of the book value,
determined by the Company in accordance with generally accepted accounting principles, of
the Company’s assets determined on a consolidated basis immediately before such transaction
or the first of such transactions; or
(iii) the merger, consolidation, share exchange or reorganization of the Company (or
one or more direct or indirect subsidiaries of the Company) as a result of which the holders
of all of the shares of capital stock of the Company as a group would receive less than
fifty-one percent (51%) of the combined voting power of the voting securities of the Company
or such surviving or resulting entity or any parent thereof immediately after such merger,
consolidation, share exchange or reorganization; or
(iv) the adoption of a plan of complete liquidation or the approval of the dissolution
of the Company; or
(v) the commencement (within the meaning of SEC Rule 13e-4 under the Exchange Act) of a
tender or exchange offer which, if successful, would result in a Change of Control of the
Company; or
(vi) a determination by the Board of Directors of the Company, in view of the then
current circumstances or impending events, that a Change of Control of the Company has
occurred or is imminent, which determination shall be made for the specific purpose of
triggering the operative provisions of this Agreement.
8. Notice. For purposes of this Agreement, notices and all other communications
provided for herein shall be in writing and shall be deemed to have been duly given when
hand-delivered, sent by telecopier, facsimile transmission, or other electronic means of
transmitting written documents (as long as receipt is acknowledged) or mailed by United States
certified or registered mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive, to the address set forth on the signature page.
If to the Company:
|
Xxxxx Enterprises, Incorporated | |
| 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000 | ||
| Xxxxx, Xxxxxxx 00000 | ||
| Attention: Chairman of the Board of Directors | ||
| with a copy to: | ||
| Xxxxx Enterprises, Incorporated | ||
| 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000 | ||
| Xxxxx, Xxxxxxx 00000 | ||
| Attention: General Counsel |
| Executive Evergreen - CEO | Xxxxx Enterprises Incorporated | _________ | ||
| Revised 12/08 | Page Number 11 | Initial |
Xxxxxxx X. Xxxxx
or to such other address as either party may have furnished to the other in writing in accordance
herewith, except that a notice of change of address shall be effective only upon receipt.
9. Enforcement and Governing Law. It is stipulated that a breach by Executive of the
restrictive covenants set forth in Sections 4 and 5 of this Agreement will cause irreparable damage
to Company or its Clients, and that in the event of any breach of those provisions, Company is
entitled to injunctive relief restraining Executive from violating or continuing a violation of the
restrictive covenants as well as other remedies it may have. Additionally, such covenants shall be
enforceable against the Executive’s successors or assigns or by successor assigns.
The validity, interpretation, construction, and performance of this Agreement shall be
governed by the internal laws of the State of Florida. Any litigation to enforce this Agreement
shall be brought in the state or federal courts of Hillsborough County, Florida, which is the
principal place of business for Company and which is considered to be the place where this
Agreement is made. Both parties hereby consent to such courts’ exercise of personal jurisdiction
over them.
10. Arbitration of Disputes.
(a) Duty to Arbitrate. Except for any claim by the Company to enforce the restrictive
covenants set forth in Sections 4 and 5 above, Company and Executive agree to resolve by binding
arbitration any claim or controversy arising out of or related to Executive’s employment by Company
or this Agreement, to include all matters directly or indirectly related to your recruitment,
employment or termination of employment by the Company including, but not limited to claims
involving laws against discrimination whether brought under federal and/or state law, and/or claims
involving co-employees but excluding workers compensation claims, whether such claim is based in
contract, tort, statute, or any other legal theory, including any claim for damages, equitable
relief, or both. The duty to arbitrate under this Section extends to any claim by or against any
officer, director, shareholder, employee, agent, representative, parent, subsidiary, affiliate,
heir, trustee, legal representative, successor, or assign of either party making or defending any
claim that would otherwise be arbitrable under this Section. However, this Section shall not be
interpreted to preclude either party from petitioning a court of competent jurisdiction for
temporary injunctive relief, solely to preserve the status quo pending arbitration of the claim or
controversy, upon a proper showing of the need for such relief.
(b) The Arbitrator. A single arbitrator will conduct the arbitration in Tampa,
Florida, U.S.A., in accordance with the Commercial Arbitration Rules of the American Arbitration
Association (the “Rules”), and judgment upon the written award rendered by the arbitrator may be
entered in any court of competent jurisdiction. Notwithstanding the application of the Rules,
however, discovery in the arbitration, including interrogatories, requests for production, requests
for admission, and depositions, will be fully available and governed by the Federal Rules of Civil
Procedure and Local Rules of the United States District Court for the Middle District of Florida.
The parties may agree upon a person to act as sole arbitrator within thirty (30) days after
submission of any claim or controversy to arbitration pursuant to this Section. If the parties are
unable to agree upon such a person within such time period, an arbitrator shall be selected in
| Executive Evergreen - CEO | Xxxxx Enterprises Incorporated | _________ | ||
| Revised 12/08 | Page Number 12 | Initial |
Xxxxxxx X. Xxxxx
accordance with the Rules. The arbitrator will not have the power to award punitive or exemplary
damages.
(c) Limitations Period. The parties agree that any claim or controversy that would be
arbitrable under this Section must be submitted to arbitration within one (1) year after the claim
or controversy arises and that a failure to institute arbitration proceedings within such time
period shall constitute an absolute bar to the institution of any proceedings, in arbitration or in
any court, and a waiver of all such claims. This Section will survive the expiration or early
termination of this Agreement.
(d) Governing Law. This Agreement shall be governed in its construction,
interpretation, and performance by the laws of the State of Florida, without reference to law
pertaining to conflict of laws. However, the Federal Arbitration Act, as amended, will govern the
interpretation and enforcement of this Section.
(e) Attorneys’ Fees. The prevailing party in any arbitration or dispute, or in any
litigation, arising out of or related to Executive’s employment by Company or this Agreement, shall
be entitled to recover all costs and reasonable attorneys’ fees incurred on all levels and in all
proceedings, including, but not limited to, arbitration, filing, hearing, processing, and witness
fees, and any other costs and fees incurred, in any investigations, arbitrations, trials,
bankruptcies, and appeals.
(f) Severability. Each part of this Section 10 is severable. A holding that any part
of this Section 10 is unenforceable will not affect the duty to arbitrate under this Section 10.
11. Miscellaneous. No provision of this Agreement may be modified or waived unless
such waiver or modification is agreed to in writing signed by the parties hereto; provided,
however, that the terms of the performance bonus and fringe benefits set forth on Exhibit A may be
amended by the Company in its discretion without the Executive’s consent to the extent provided
therein. No waiver by any party hereto of any breach by any other party hereto shall be deemed a
waiver of any similar or dissimilar term or condition at the same or at any prior or subsequent
time. This Agreement is the entire agreement between the parties hereto with respect to the
Executive’s employment by the Company and there are no agreements or representations, oral or
otherwise, expressed or implied, with respect to or related to the employment of the Executive
which are not set forth in this Agreement. Any prior agreement relating to the Executive’s
employment with the Company (including the Prior Agreement) is hereby superseded and void, and is
no longer in effect. This Agreement shall be binding upon and inure to the benefit of the Company,
its respective successors and assigns, and the Executive and his heirs, executors, administrators
and legal representatives. Except as expressly set forth herein, no party shall assign any of his
or its rights under this Agreement without the prior written consent of the other party and any
attempted assignment without such prior written consent shall be null and void and without legal
effect. The parties agree that if any provision of this Agreement shall under any circumstances be
deemed invalid or inoperative, the Agreement shall be construed with the invalid or inoperative
provision deleted and the rights and obligations of the parties shall be construed and enforced
accordingly. 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 but one and the same instrument.
This Agreement has been negotiated and no
| Executive Evergreen - CEO | Xxxxx Enterprises Incorporated | _________ | ||
| Revised 12/08 | Page Number 13 | Initial |
Xxxxxxx X. Xxxxx
party shall be considered as being responsible for such drafting for the purpose of applying any
rule construing ambiguities against the drafter or otherwise.
12. Additional Tax Provisions.
(a) To the extent this Agreement provides for reimbursements of expenses incurred by Executive
or in-kind benefits the provision of which are not exempt from the requirements of Section 409A of
the Code, the following terms apply with respect to such reimbursements or benefits: (1) the
reimbursement of expenses or provision of in-kind benefits will be made or provided only during the
term of employment hereunder, or other period of time specifically provided herein; (2) the amount
of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year will
not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any
other calendar year; (3) all reimbursements will be made upon Executive’s request in accordance
with the Company’s normal policies but no later than the last day of the calendar year immediately
following the calendar year in which the expense was incurred; and (4) the right to reimbursement
or the in-kind benefit will not be subject to liquidation or exchange for another benefit.
(b) The parties intend for this Agreement to conform in all respects to the requirements under
Section 409A of the Code or an exemption thereto. Accordingly, the parties intend for this
Agreement to be interpreted, construed, administered and applied in a manner as shall meet and
comply with the requirements of Section 409A of the Code or an exemption thereto. Notwithstanding
any other provision of this Agreement, none of the Company, its subsidiaries or affiliates or any
individual acting as a director, officer, employee, agent or other representative of the Company or
a subsidiary or affiliate shall be liable to Executive or any other person for any claim, loss,
liability or expense arising out of any interest, penalties or additional taxes due by Executive or
any other person as a result of this Agreement or the administration thereof not satisfying any of
the requirements of Section 409A of the Code. Executive represents and warrants that Executive has
reviewed or will review with his own tax advisors the federal, state, local and employment tax
consequences of entering into this Agreement, including, without limitation, under Section 409A of
the Code, and, with respect to such matters, Executive relies solely on such advisors.
[Signature Page Follows]
| Executive Evergreen - CEO | Xxxxx Enterprises Incorporated | _________ | ||
| Revised 12/08 | Page Number 14 | Initial |
Xxxxxxx X. Xxxxx
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.
| XXXXX ENTERPRISES, INCORPORATED | EXECUTIVE | |||||||||
| By: | /s/ Xxxxx X. Xxxxxx | /s/ Xxxxxxx X. Xxxxx | ||||||||
| Name: | Xxxxx X. Xxxxxx | XXXXXXX X. XXXXX | ||||||||
| Title: | Sr. Vice President & General Counsel | |||||||||
| Address: | ||||||||||
| Executive Evergreen - CEO | Xxxxx Enterprises Incorporated | _________ | ||
| Revised 12/08 | Page Number 15 | Initial |
Xxxxxxx X. Xxxxx
EXHIBIT “A” TO EMPLOYMENT AGREEMENT
Base Salary:
|
$10,576.92 per week payable bi-weekly effective December 8, 2008. | |
Performance Bonus:
|
Eligible to participate in performance based bonus plan. | |
Fringe Benefits:
|
Eligible for standard executive benefits | |
Renewal Notice Period:
|
One hundred and eighty (180) days |
The Company reserves the right, at its discretion, at such time or times as it elects, to change or
eliminate incentives or other benefits.
IN WITNESS WHEREOF, the parties have executed this Exhibit A as of the 30th day of
December, 2008.
| XXXXX ENTERPRISES, INCORPORATED | EXECUTIVE | |||||||||
| By: | /s/ Xxxxx X. Xxxxxx | /s/ Xxxxxxx X. Xxxxx | ||||||||
| Name: | Xxxxx X. Xxxxxx | XXXXXXX X. XXXXX | ||||||||
| Title: | Sr. Vice President & General Counsel | |||||||||
| Executive/ Term or Renewal Period | Xxxxx Enterprises Incorporated | _________ | ||
| Revised 12/08 | Page Number 16 | Initial |
