AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (this
"Agreement") is effective as of August 19, 1996 (the "Effective Date"), between
COMPSCRIPT, INC., a Florida corporation (the "Company"), whose principal place
of business is 0000 Xxxxxx Xxxxx Xxxxxxx, X.X., Xxxxx X, Xxxx Xxxxx, Xxxxxxx
00000, and XXXXX X. XXXXX, an individual (the "Employee"), whose address is
__________________________________________.
WHEREAS, the Company is a Florida corporation engaged in providing
consulting, pharmaceutical and accounting services to nursing home and assisted
living residents; and
WHEREAS, the Company presently employs the Employee and desires to
continue to employ the Employee and the Employee desires to continue in the
employ of the Company; and
WHEREAS, the Company has established a valuable reputation and goodwill
in its business, with expertise in all aspects of providing consulting,
pharmaceutical and accounting services to nursing home and assisted living
residents (the "Business"); and
WHEREAS, the Employee has created and established, at least in part,
and is in possession of, the manner, methods, trade secrets and other
confidential information pertaining to the Company's Business;
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Company and the Employee 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 Employee, and the
Employee hereby accepts employment, upon the terms and conditions hereinafter
set forth.
3. AUTHORITY AND POWER DURING EMPLOYMENT PERIOD.
a. DUTIES AND RESPONSIBILITIES. During the term of this Agreement,
Employee shall serve as Chief Executive Officer and Chairman of the Board of
Directors of the Company and shall have general executive and operating
supervision over the property, business and affairs of the Company, its
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 this
Agreement, the Employee shall serve as a member of the board of directors of the
Company and shall be elected and serve through the Term of the Agreement as
chairman of the board of directors. In the event Employee shall at any time not
be on the board of directors of the Company and serving as chairman of such
board, it shall be presumed (if Employee so elects) that the Employee has been
terminated other than for cause and Employee shall have all of the rights
specified in Section 6.h. of this Agreement just as if the Employee had been
terminated "Without Cause."
b. TIME DEVOTED. Throughout the term of the Agreement, the Employee
shall devote substantially all of the Employee's business time and attention to
the business and affairs of the Company consistent with the Employee's senior
executive position with the Company, except for reasonable vacations and except
for illness or incapacity, but nothing in the Agreement shall preclude the
Employee from engaging in personal business and/or serving as a member of the
board of directors of other related companies, charitable and community affairs,
provided that such activities do not interfere with the regular performance of
the Employee's duties and responsibilities under this Agreement.
4. TERM. The Term of employment hereunder will commence on the
Effective Date as set forth above and be for five (5) years from the Effective
Date provided that the Employee shall be entitled to three one-year extensions
to be exercisable by written notice given by Employee to the Company at least
forty-five (45) days before the expiration of the Term or a Renewal Term, as the
case may be, unless terminated pursuant to Section 6 of this Agreement.
5. COMPENSATION AND BENEFITS.
a. SALARY. The Employee shall be paid a base salary (the "Base
Salary"), payable bi-weekly, at an annual rate of no less than Three Hundred
Thousand Dollars ($300,000) for the first year, with annual incremental
increases of the greater of: (i) the percentage increase in the Consumer Price
Index, all items, as published by the United States Department of Labor, since
the Effective Time (in the case of the first annual increase) or since the most
recent anniversary of the Effective Time (in the case of all subsequent annual
increases), or (ii) six percent (6%) of the previous year's base salary.
b. BONUS COMPENSATION.
i. OPTIONS. Employee shall be granted 160,000 options to purchase
CompScript, Inc. Common Stock at an exercise price of $5.13. Such options shall
vest immediately and expire ten (10) years from the date of this agreement.
ii. PERFORMANCE-BASED BONUS. Employee shall be entitled to a
performance based bonus equal to 10 percent (10%) of net pre-tax profits for
each year. The performance-based bonus shall be payable annually.
2
c. EMPLOYEE BENEFITS. The Employee 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, salary
continuation, vacation and holidays, cellular telephone and all related costs
and expenses, long-term disability, and other fringe benefits.
d. VACATION. During each fiscal year of the Company, the Employee
shall be entitled to reasonable time and to utilize such vacation as the
Employee shall determine; provided however, that the Employee shall evidence
reasonable judgment with regard to appropriate vacation scheduling.
Notwithstanding the foregoing, employee shall be entitled to four (4) weeks
vacation per year.
e. BUSINESS EXPENSE REIMBURSEMENT. During the Term and any Renewal
Term of employment, the Employee shall be entitled to receive proper
reimbursement for all reasonable, out-of-pocket expenses incurred by the
Employee (in accordance with the policies and procedures established by the
Company for its senior executive officers) in performing services hereunder,
provided the Employee properly accounts therefor.
f. AUTOMOBILE EXPENSES. The Company shall provide the Employee with
an automobile of the Employee's choice. The Company shall also be responsible
for all expenses in connection with such automobile including, but not limited
to, maintenance, insurance and gas.
g. MEMBERSHIPS, DUES. The Company shall provide to the Employee a
membership in a social, charitable or religious organization or club, which
membership shall be either in the name of the Employee or in the name of the
Company, as determined by the Employee
h. CHARITABLE CONTRIBUTIONS. The Company shall pay or reimburse the
Employee for charitable donations or contributions made, which amount and which
charities shall be determined in the sole discretion of the Employee, provided,
however, that such donations or contributions shall not exceed $25,000 in any
fiscal year.
i. LIFE INSURANCE. The Company shall pay or reimburse Employee for
premiums and other charges associated with such life insurance policies as
Employee and the Company shall mutually agree.
6. CONSEQUENCES OF TERMINATION OF EMPLOYMENT.
a. DEATH. In the event of the death of the Employee during the Term
or any Renewal Term of the Agreement, salary shall be paid to the Employee's
designated beneficiary, or, in the absence of such designation, to the estate or
other legal representative of the Employee for a period of one (1) year from and
after the date
3
of death. The Company shall also be obligated to pay to the Employee's estate or
heirs, as the case may be, such amount of Bonus based upon (i) the formula set
forth in Section 5(b) of this Agreement for the fiscal year in which the death
of the Employee occurred, (ii) divided by twelve (12); and (iii) then multiplied
by the number of months or any portions thereof the Employee was employed by the
Company just prior to the Employee's death. Except as set forth herein, other
death benefits will be determined in accordance with the terms of the Company's
benefit programs and plans.
b. DISABILITY.
i. In the event of the Employee's disability, as hereinafter
defined, the Employee 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 Employee, but in
all events the Employee shall continue to receive the Employee's salary
for a period, at the annual rate in effect immediately prior to the
commencement of disability, of not less than 180 days from the date on
which the disability has deemed to occur as hereinafter provided below.
Any amounts provided for in this Section 6(b) shall be offset by other
long-term disability benefits provided to the Employee by the Company.
ii. "Disability," for the purposes of this Agreement, shall be
deemed to have occurred in the event (A) the Employee is unable by reason
of sickness or accident, to perform the Employee's duties under this
Agreement for an aggregate of 180 days in any twelve-month period or (B)
the Employee 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 Employee becomes reemployed, whether as an
Employee or a consultant to the Company, any salary, annual incentive
payments or other benefits earned by the Employee from such employment
shall offset any salary continuation due to the Employee hereunder
commencing with the date of re-employment.
c. TERMINATION BY THE COMPANY FOR CAUSE.
i. Nothing herein shall prevent the Company from terminating
Employment for "Cause," as hereinafter defined. The Employee shall
continue to receive salary only for the period ending with the date of
such termination as provided in this Section 6(c). Any rights and benefits
the Employee may have in
4
respect of any other compensation shall be determined in accordance with
the terms of such other compensation arrangements or such plans or
programs.
ii. "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 fraud, 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 Employee in
violation of Section 14 of this Agreement. Anything herein to the contrary
notwithstanding, the employment of Employee shall not be terminable by the
Company for Cause if the grounds for such termination includes, but is not
limited to: (i) the result of bad judgment or poor economic results on the
part of the Employee, (ii) any act or omission believed by Employee in
good faith to have been in or not opposed to the interests of the Company,
or (iii) any act or omission in respect of which a determination could
properly be made that Employee met the applicable standard of conduct
described for indemnification or reimbursement or payment of expenses
under the Articles of Incorporation or Bylaws of the Company or the laws
of the State of Florida or the directors' and officers' liability
insurance of the Company, in each case as in effect at the time of such
act or omission.
iii. 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 Employee a notice of
termination stating that the Employee 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 Employee shall be given a
thirty (30) day period to cure such conduct, if possible.
d. TERMINATION BY THE COMPANY OTHER THAN FOR CAUSE.
i. The foregoing notwithstanding, the Company may terminate the
Employee'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 Employee shall continue to perform the Employee's duties
pursuant to this Agreement, and the Company shall continue to compensate
the Employee in accordance with this Agreement. The Employee will receive,
at the Employee's option either (A) a lump sum equal to the "Compensation
and Benefits," as
5
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 or any Renewal Term of this Agreement from
and after the date of any such termination and the Company shall on the
last day of each calendar month pay to the Employee such "Compensation and
Benefits," which shall be an amount equal to (Y) one hundred percent
(100%) of the Employee's compensation and benefits set forth in Section 5,
which shall specifically include the Base Salary and Bonus, which Bonus
shall be payable on a pro-rata basis for the year in which the Employee'
employment was terminated other than for cause (the "Compensation and
Benefits"), on the date of any such termination, divided by (Z) twelve
(12); provided however that if (A) there is a decrease in the Employee's
Compensation and Benefits, which specifically include the Employee's then
Base Salary and Bonus, for any reason other than the targets set forth in
Section 5(b) are not met, and (B) the Employee is terminated without
cause, the Compensation and Benefits shall be as existed immediate prior
to such a decrease. The Employee 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 Employee with comparable
benefit coverage during the term in which the Employee is receiving
payments from the Company after termination pursuant to Section 6(d). Such
benefit coverage will not be offset by comparable coverage provided to the
Employee in connection with subsequent employment.
ii. In the event that the Employee's employment with the Company
is terminated pursuant to this Section 6(d), Section 6(f) or Section 6(g),
Section 7(a) of this Agreement and all references thereto shall be
inapplicable as to the Employee and the Company.
iii. The foregoing notwithstanding, the Employee's employment may
not be terminated by the Company for any reason other than pursuant to
Section 6(a), Section 6(b) and/or Section 6(c) during the first three (3)
years of this Agreement.
e. VOLUNTARY TERMINATION. In the event the Employee terminates the
Employee's employment on the Employee's own volition (except as provided in
Section 6(f) and/or Section 6(g)) prior to the expiration of the Term or during
any Renewal Term of this Agreement, including any renewals thereof, such
termination shall constitute a voluntary termination and in such event the
Employee 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 Employee 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 Employee:
6
i. a significant change in the nature or scope of the
authorities, powers, functions, duties or responsibilities attached to
Employee's position as described in Section 3; or
ii. five percent (5%) reduction in the Employee's base salary or
any change in the method of calculating Employee's Bonus Compensation hereunder
which would be detrimental to Employee in any respect; or
iii. a material breach of the Agreement by the Company;
or
iv. a material reduction of the Employee's benefits under any
employee benefit plan, program or arrangement (for Employee 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
v. failure by a successor company to assume the obligations under
the Agreement.
vi. a change in the Executive principal office to a location
outside the Broward and Palm Beach County, Florida area.
Anything herein to the contrary notwithstanding, the Employee shall give written
notice to the Board of Directors of the Company that the Employee believes an
event has occurred which would result in a Constructive Termination of the
Employee's employment under this Section 6(f), which written notice shall
specify the particular act or acts, on the basis of which the Employee intends
to so terminate the Employee'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 (i)
through (v) above).
g. TERMINATION FOLLOWING A CHANGE OF CONTROL.
i. 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 Employee shall have the right to
terminate the Employee'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 Employee's employment with the
Company pursuant to this Section 6(g)(i), then, in any such event, such
termination shall be deemed to be a Termination by the Company Other than
for Cause and the Employee shall be
7
entitled to such Compensation and Benefits as set forth in Subsection 6(d)
of this Agreement.
ii. 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 8K, 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 Employee, (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
(C) there is a failure to elect four 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 Employee'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)(ii) will not
apply where the Employee gives the Employee's explicit written waiver stating
that for the purposes of this Section 6(g)(ii) a Change in Control shall not be
deemed to have occurred. The Employee'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)
8
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.
iii. 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 Employee under this
Agreement, for any reason other than for Cause as defined in Section 6(c),
or the Employee's employment is constructively terminated as defined in
Section 6(g)(iv), then, in any such event, such termination shall be
deemed to be a Termination by the Company Other than for Cause and the
Employee shall be entitled to such Compensation and Benefits as set forth
in Subsection 6(d) of this Agreement.
iv. For purposes of this Section 6(g), the Employee's employment
shall be deemed constructively terminated in the event one or more of the
following events occurs without the express written consent of the
Employee:
(A) Significant change in the nature or scope of the
authorities, powers, functions, duties or responsibilities attached
to Employee's position as described in Section 3; or
(B) A five percent (5%) reduction in the Employee's salary
below the salary in effect immediately prior to such reduction or a
reduction in the target bonus participation under Section 5(d) as a
percentage of salary; or
(C) Material breach of the Agreement by the Company; or
(D) Material reduction of the Employee's benefits under any
employee benefit plan, program or arrangement (for Employee
individually or as part of a group) of the Company as then in effect
or as in effect on the effective date or the Agreement, which
reduction shall not be effectuated for similarly situated employees
of the Company; or
(E) Failure by a successor company to assume the obligations
under the Agreement; or
(F) Change in the Employee's principal office to a location
outside the Palm Beach-Broward County, Florida area.
v. Anything in this Section 6(g) to the contrary notwithstanding, in
no event will any action or non-action by the Employee at any time prior
to the first anniversary date of the applicable Change in Control or
Attempted Change in Control (including any action or non-action prior to
the effective date of this Agreement) be deemed consent to any of the
events described in this Section 6(g).
9
vi. Anything herein to the contrary notwithstanding, in the event
the circumstances giving rise to an Attempted Change in Control are
included in those circumstances giving rise to an actual Change in Control
the twelve (12) month period under this Section 6 will be deemed to have
recommenced on the date the actual Change in Control occurred.
7. COVENANT NOT TO COMPETE AND NON-DISCLOSURE OF INFORMATION.
a. COVENANT NOT TO COMPETE. Except as set forth in Section 6(d)(ii)
of this Agreement, the Employee 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, the Employee agrees to the
following:
i. That during the Restricted Period (as hereinafter defined) and
within the Restricted Area (as hereinafter defined), the Employee will
not, individually or in conjunction with others, directly or indirectly,
engage in any 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, agent or otherwise.
ii. That during the Restricted Period and within the Restricted
Area, the Employee 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.
iii. That during the Restricted Period and within the Restricted
Area, the Employee will not (A) directly or indirectly recruit, solicit or
otherwise influence any employee or agent of the Company to discontinue
such employment or agency relationship with the Company, or (B) employ or
seek to employ, or cause or permit any business which competes directly or
indirectly with the Business Activities of the Company (the "Competitive
Business") to employ or seek to employ for any Competitive Business any
person who is then ( or was at any time within six (6) months prior to the
date Employee or the Competitive Business employs or seeks to employ such
person) employed by the Company.
iv. That during the Restricted Period the Employee will not
interfere with, or disrupt or attempt to disrupt any past, present or
prospective relationship, contractual or otherwise, between the Company
and any customer, employee or agent of the Company.
10
b. NON-DISCLOSURE OF INFORMATION. The Employee acknowledges that the
Company's trade secrets, private or secret processes, methods and ideas, as they
exist from time to time, customer lists and information concerning the Company's
products, services, training methods, development, technical information,
marketing activities and procedures, credit and financial data concerning the
Company and/or the Company's Clients, and (the "Proprietary Information") are
valuable, special and unique assets of the Company, access to and knowledge of
which are essential to the performance of the Employee hereunder. In light of
the highly competitive nature of the industry in which the Company's business is
conducted, the Employee agrees that all Proprietary Information, heretofore or
in the future obtained by the Employee as a result of the Employee's association
with the Company shall be considered confidential.
In recognition of this fact, the Employee agrees that the Employee,
during the Restricted Period, will not use or disclose any of such Proprietary
Information for the Employee's own purposes or for the benefit of any person or
other entity or organization (except the Company) under any circumstances unless
such Proprietary Information has been publicly disclosed generally or, unless
upon written advice of legal counsel reasonably satisfactory to the Company, the
Employee is legally required to disclose such Proprietary Information. Documents
(as hereinafter defined) prepared by the Employee or that come into the
Employee's possession during the Employee's association with the Company are and
remain the property of the Company, and when this Agreement terminates, such
Documents shall be returned to the Company at the Company's principal place of
business, as provided in the Notice provision (Section 10) of this Agreement.
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 persons, partnerships, corporations, professional associations or other
organizations for whom the Company has performed Business Activities.
e. RESTRICTIVE PERIOD. The "Restrictive Period" shall be deemed to
be during the Term or Renewal Term of this Agreement and for a period of twelve
(12) months following termination of this Agreement).
11
f. RESTRICTED AREA. The Restricted Area shall be deemed to mean any
county of any state in which the Company is providing service at the time of
termination.
g. BUSINESS ACTIVITIES. "Business Activities" shall be deemed to
include any business activities concerning consulting, pharmaceutical and
accounting services to nursing homes and assisted living residents provided by
the Company and any additional activities which the Company or any of its
affiliates may engage in during the term of this Agreement.
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 Employee to comply with such covenants, the
Company would not have agreed to enter into this Agreement. Such covenants by
the Employee 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 Employee.
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 Employee's
employment with the Company.
j. REMEDIES.
i. The Employee 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 the breach shall be per
se deemed as causing irreparable harm to the Company. In recognition of
this fact, in the event of a breach by the Employee of any of the
provisions of Section 7(a) or (b), the Employee agrees that, in addition
to any remedy at law available to the Company, including, but not limited
to monetary damages, all rights of the Employee to payment or otherwise
under this Agreement and all amounts then or thereafter due to the
Employee from the Company under this Agreement may be terminated and the
Company, without posting any bond, shall be entitled to obtain, and the
Employee 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 Employee 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
12
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 Employee 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 Employee's
employment with the Company, subject to all the provisions of Florida and
Federal law and the Articles of Incorporation and Bylaws of the Company then in
effect. Such reasonable expenses, including attorneys' fees, that may be covered
by the Articles 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
Articles of Incorporation and Florida law. To the extent that any such payments
by the Company pursuant to the Company's Articles of Incorporation and/or Bylaws
may be subject to repayment by the Employee pursuant to the provisions of the
Company's Articles of Incorporation or Bylaws, or pursuant to Florida or Federal
law, such repayment shall be due and payable by the Employee to the Company
within twelve (12) 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 Employee's employment with the Company and as
to which Employee has been covered by such applicable provisions.
9. WITHHOLDING. Anything to the contrary notwithstanding, all payments
required to be made by the Company hereunder to the Employee or the Employee'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 Employee to
the Employee'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
13
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 Employee 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. Anything in this Agreement to
the contrary notwithstanding, the Employee shall conduct the Employee'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 Employee is located.
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,
14
xxxxx, 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 Employee 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 EMPLOYEE ACKNOWLEDGES THAT THE EMPLOYEE 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.
Witness: THE COMPANY:
COMPSCRIPT, INC.
By: /S/ XXXX XXXXXX
----------------------------- --------------------------
Witness: THE EMPLOYEE:
/S/ XXXXX X. XXXXX
----------------------------- ------------------------------
Xxxxx X. Xxxxx
15
