Exhibit 10.11
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") effective as of the 1st day of
November 2002 between Blue Moon Group, Inc.., a Delaware corporation (together
with its successors and assigns referred to herein as the "Corporation"), with
principal executive offices located at 0000 Xxxxxxx Xxxxxx Xx., Xxxxx, XX 00000
and Xxxxxxx Xxxxx, 0000 Xxxxxxx Xxxxxx Xx., Xxxxx, XX 00000 (the "Executive").
W I T N E S E T H:
WHEREAS, the Corporation desires to employ Executive as the Chief
Executive Officer and President to engage in such activities and to render such
services under the terms and conditions hereof and has authorized and approved
the execution of this Agreement; and
WHEREAS, Executive desires to be employed by the Corporation under the
terms and conditions hereinafter provided;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings herein contained, the parties agree as follows:
1. EMPLOYMENT, DUTIES AND ACCEPTANCE.
1.1 SERVICES. The Corporation hereby employs Executive, for
the Term (as hereinafter defined in Section 2 hereof), to render services to the
business and affairs of the Corporation in the office referenced in the recitals
hereof and, in connection therewith, shall perform such duties as directed by
the Board of Directors of the Corporation from time to time, in its reasonable
discretion, and shall perform such other duties as shall be consistent with the
responsibilities of such office (collectively the "Services"). Executive shall
perform activities related to such office as he shall reasonably be directed or
requested to so perform by the Corporation's Board of Directors, to whom he
shall report. Executive shall use his best efforts, skill and abilities to
promote the interests of the Corporation and its subsidiaries.
1.2 ACCEPTANCE. Executive hereby accepts such employment and
agrees to render the Services.
1.3 REPRESENTATIONS OF THE EXECUTIVE. The Executive represents
and warrants to the Corporation that his execution and delivery of this
Agreement, his performance of the Services hereunder and the observance of his
other obligations contemplated hereby will not (i) violate any provisions of or
require the consent or approval of any party to any agreement, letter of intent
or other document to which he is a party or (ii) violate or conflict with any
arbitration award, judgment or decree or other restriction of any kind to or by
which he is subject or bound.
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2. TERM OF EMPLOYMENT.
The term of Executive's employment under this Agreement (the "Term")
shall commence on November 1, 2002 and shall terminate on October 31, 2005,
unless sooner terminated pursuant to Sections 5.2 or 9 of this Agreement;
provided, however, if the Corporation shall fail to give Executive notice of
non-renewal not less than 60 days prior to the scheduled expiration of the Term
hereof, the Term shall automatically be extended for an additional two (2) year
period. Notwithstanding anything to the contrary contained herein, the
provisions of this Agreement governing Protection of Confidential Information
shall continue in effect as specified in Section 10 hereof. The Corporation that
the Executive has other business operations that require him to commit only a
minimum of 80% of his time to the Corporation.
3. BASE SALARY, EXPENSE REIMBURSEMENT AND STOCK OPTIONS.
3.1 BASE SALARY. During the Term, as full compensation for the
Services, the Corporation agrees to pay Executive a minimum base salary ("Base
Salary") at the annual rate of $125,000 for the period from November 1, 2002 to
December 31, 2003. Such Base Salary shall be (i) increased four (4.0%) annually
effective the1st day of each year during the term of this Agreement, (ii)
reviewed periodically for possible increases promptly after each future
acquisition by the Corporation of any other corporation or business or other
material increase in the Corporation's revenues or scope of the Corporation's
business and (iii) renegotiated in good faith effective as of August 15, 2005
for possible increase based upon the Corporation's historical performance and
projections for future performance. Such Base Salary shall be subject to
withholding and other applicable taxes, payable during the term of this
Agreement in accordance with the Corporation's customary payment practices, but
not less frequently than monthly.
3.2 BUSINESS EXPENSE REIMBURSEMENT. Upon submission to, and
approval by an officer of the Corporation designated by the Board of Directors
of the Corporation, of a statement of expenses, reports, vouchers or other
supporting information, which approval shall be granted or withheld based on the
Corporation's policies in effect at such time, the Corporation shall promptly
reimburse Executive for all reasonable business expenses actually incurred or
paid by him during the Term or renewals thereof in the performance of the
Services, including, but not limited to, expenses for entertainment, travel and
similar items.
3.3 STOCK OPTION AGREEMENT. In addition to the salary
hereinabove provided, the Executive shall be granted options to purchase 100,000
shares of the Corporation's Common Stock as of January 1 of each year during the
Term of this Agreement at an exercise price equal to to average of the closing
bid and asked price of the Corporation's Common Stock during month of December
immediately preceeding said January 1, pursuant to the terms of the Stock Option
Agreement between the Corporation and the Executive executed concurrently
herewith.
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4. BONUSES.
4.1 BONUS AMOUNT. In order to provide performance-based
incentive compensation to the Executive, the Corporation hereby agrees to pay
the Executive, in addition to the Base Salary set forth in Section 3 hereof, a
minimum cash bonus in respect of each fiscal year during the Executive's
employment hereunder (the "Bonus") equal to the Applicable Percentage (as
defined below) of the Net Pre-Tax Income (as defined below) of the Corporation.
For purposes hereof, the Applicable Percentage shall equal (a) 1.5% if the Net
Pre-Tax Income of the Corporation is less than $2,500,000 (b) 2.5% if the Net
Pre-Tax Income of the Corporation is at least $2,500,000, but less than
$3,500,000; (c) 3.5% if the Net Pre-Tax Income of the Corporation is at least
$3,500,001, but less than $5,000,000; and (d) 4.5% if the Net Pre-Tax Income of
the Corporation is at least $5,000,001.
4.2 NET PRE-TAX INCOME OF THE CORPORATION. For purposes
hereof, the Net Pre-Tax Income of the Corporation shall be the amount determined
by the Board of Directors of the Corporation, after consultation with the
independent accountants of the Corporation, to be the Net Pre-Tax Income of the
Corporation with respect to a given fiscal year, which amount shall be
determined based on the financial statements of the Corporation (a) in a manner
consistent with generally accepted accounting principles, (b) with regard solely
to the Corporation and its subsidiaries, (c) so as to exclude the effect of any
elimination of inter-Corporation transfers applied with respect to any entity
which is not a subsidiary of the Corporation, (d) after adding back any charges
for management consulting or corporate services or payments with respect to
non-competition agreements which may be paid to persons who are subject to
reporting obligations with respect to the Corporation under Section 16(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or their
affiliates (other than the Corporation and its subsidiaries), (e) having regard
to such other matters, if any, as the Board of Directors of the Corporation may
determine to be equitable to consider and (f) without giving effect to any Bonus
paid pursuant to this Section 4.2. The determination of the Board of Directors
of the Corporation shall be final, conclusive and binding for all purposes,
absent manifest error.
4.3 DETERMINATION AND PAYMENT. The determination of the
Applicable Percentage, of the Net Pre-Tax Income and of the extent to which any
Bonus under this Section 4 may be payable (the "Final Determination") shall be
determined by the Board of Directors (or a subcommittee thereof appointed for
such purpose) of the Corporation in accordance with the terms hereof based on
the financial statements of the Corporation and the criteria set forth herein
with respect to each fiscal year. Such Final Determination with respect to any
fiscal year shall be made promptly, and in any event within 15 days, after the
Corporation has filed its Annual Report on Form 10-K for each year with the
Securities and Exchange Commission. Within 45 days after the end of the
Corporation's fiscal year, based on the preliminary results of the Corporation
for such fiscal year, the Corporation shall pay the Executive an amount equal to
60% of the estimated minimum cash Bonus based on such preliminary results. The
balance of the definitive Bonus so determined, if any, shall be payable to the
Executive in a single lump sum no later than thirty days after the Final
Determination has been made. In any event, all matters pertaining to the Bonus
and to the payment of any Bonus to the Executive hereunder, shall be
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administered and determined by the Board of Directors (or a subcommittee thereof
appointed for such purpose) in its reasonable discretion consistent with the
terms hereof, the determination of which shall be final, conclusive and binding
for all purposes, absent manifest error.
4.4 PARTIAL YEARS. Notwithstanding anything contained herein
to the contrary, no Bonus under this Section 4 shall be deemed earned or payable
with respect to any fiscal year during which this Agreement or the Executive's
employment is terminated by the Corporation for Cause (as such term is
hereinafter defined).
4.5 Nothing in this Section 4 shall be construed as conferring
upon the Executive any right (i) normally associated with the ownership of
capital stock; (ii) to continue in the employ of the Corporation or any
affiliate of the Corporation; or (iii) to interfere in any way with the right of
the Corporation to terminate this Agreement in accordance with the provisions
hereof. Nothing in this Agreement shall be construed to imply that any specific
assets of the Corporation have been set aside to provide for payments under this
Agreement. Any payments under this Agreement shall be made solely from general
assets of the Corporation existing at the time such payments are due.
5. SEVERANCE UPON TERMINATION.
5.1 TERMINATION. In the event that Executive's employment
hereunder shall be terminated by the Corporation without Cause (as defined in
Section 9.3 hereof) or by the Executive for Good Reason (as defined in Section
9.5 hereof) or upon a Change in Control (as defined in Section 9.6 hereof) or
upon the death or Disability (as defined in Section 9.2) of Executive at any
time prior to the end of the Term, the Executive shall be entitled to receive
from the Corporation, in addition to any Base Salary earned to the date of
termination, a severance payment in an amount equal to the greater of (i) the
balance of the Executive's Base Salary due through the balance of the Term of
this Agreement or (ii) two (2) times the Executive's Base Salary as was payable
to Executive during the then current calendar year plus two (2) times the Bonus
for which Executive was entitled during the immediately preceding fiscal year.
6. ADDITIONAL BENEFITS.
6.1 IN GENERAL. In addition to the compensation, bonuses,
expenses and other benefits to be paid under Sections 3, 4 and 5 hereof,
Executive will be entitled to all rights and benefits for which he shall be
eligible under any insurance, health and medical, incentive, bonus,
profit-sharing, pension or other extra compensation or "fringe" benefit plan of
the Corporation or any of its subsidiaries now existing or hereafter adopted for
the benefit of the executives or employees generally of the Corporation. The
provisions of this Agreement which incorporate employee benefit packages shall
change as and when such employee benefit packages change. In the event that the
Corporation does not provide family health and medical insurance for the benefit
of the executives and employees generally of the Corporation, the Corporation
shall provide Executive and pay the all costs associated with family health and
medical insurance for the benefit of Executive as selected by Executive in his
sole discretion.
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6.2 AUTOMOBILE. The Corporation shall lease for the Executive
an automobile of his choice to be used by the Executive in connection with the
Corporation's business, at a monthly rental not to exceed $750 and for a lease
term not to exceed three (3) years. The Corporation shall be responsible for all
reasonable costs of operating, repairing, maintaining and insuring such
automobile.
6.3 LIFE AND DISABILITY INSURANCE. The Corporation shall
provide the Executive with (i) a policy of term life insurance in an amount
equal to not less than three (3) times his annual Base Salary HEREUNDER, payable
to such beneficiary or beneficiaries as shall be designated by him in writing
and (b) a policy of disability insurance that will provide Executive with an
annual amount equal to not less than seventy-five percent (75%) of his then
current Base Salary, payable until Executive shall reach 65 years of age, with a
waiting period not to exceed 120 days.
6.4 DIRECTOR'S AND OFFICERS INSURANCE. The Corporation shall
provide the Executive with a policy of director's and officers liability
insurance in such amounts and providing such coverage as the Executive and the
Corporation shall reasonably agree, consistent with policies obtained by other
publicly held companies of similar size and engaged in similar businesses.
7. VACATION.
The Executive shall be entitled, during the Term of this Agreement, to
a vacation period as follows:
November 1, 2002 through December 31, 2003 -- four (4) weeks
January 1, 2004 through December 31, 2004 -- five (5) weeks
January 1, 2005 through October 31, 2005 -- six (6) weeks;
during which all salary, compensation, benefits and other rights to which the
Executive is entitled to hereunder shall be provided in full. Such vacation may
be taken in the Executives discretion, and such time or times as are not
inconsistent with the reasonable business needs of the Corporation. In addition,
Executive shall be entitled to up to eight (8) sick days and two (2) personal
days for each year commencing January 1, during which all salary, compensation,
benefits and other rights to which the Executive is entitled to hereunder shall
be provided in full.
8. INSURABILITY; RIGHT TO INSURE. Executive agrees that the Corporation
shall have the right during the Term to insure the life of Executive by a policy
or policies of insurance in such amount or amounts as it may deem necessary or
desirable, and the Corporation shall be the beneficiary of any stitch policy or
policies and shall pay the premiums or other costs thereof. The Corporation
shall have the right, from time to time, to modify any such policy or policies
of insurance or to take out new insurance on the life of Executive. Executive
agrees, upon request, at any time or times prior to the commencement of or
during the Term to sign and deliver any
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and all documents and to submit to any physical or other reasonable examinations
which may be required in connection with any such policy or policies of
insurance or modifications thereof.
9. TERMINATION.
9.1 DEATH. If Executive dies during the Term of this
Agreement, Executive's employment hereunder shall terminate upon his death and
all obligations of the Corporation hereunder shall terminate on such date,
except that Executive's estate or his designated beneficiary shall be entitled
to payment of any unpaid accrued Base Salary through the date of his death. In
addition, any accrued and unpaid Bonus shall be paid in accordance with Section
4 hereof. In addition, Executive's estate or his designated beneficiary shall be
entitled to payment of the severance payments set forth in Section 5.1 hereof.
9.2 DISABILITY. If Executive shall be unable to perform a
significant part of his duties and responsibilities in connection with the
conduct of the business and affairs of the Corporation and such inability lasts
for (i) a period of at least one hundred twenty (120) consecutive days, or (ii)
periods aggregating at least one hundred eighty (180) days during any three
hundred sixty-five (365) consecutive days, by reason of Executive's physical or
mental disability, whether by reason of injury, illness or similar cause,
Executive shall be deemed disabled, and the Corporation any time thereafter may
terminate Executive's employment hereunder by reason of the disability. Upon
delivery to Executive of such notice, all obligations of the Corporation
hereunder shall terminate, except that Executive shall be entitled to payment of
any unpaid accrued Base Salary through the date of termination. In addition, any
accrued and unpaid Bonus shall be paid in accordance with Section 4 hereof. In
addition, the Executive shall be entitled to those severance payments set forth
in Section 5.1 hereof. The obligations of Executive under Section 10 hereof
shall continue notwithstanding termination of Executive's employment pursuant to
this Section 9.2.
9.3 TERMINATION FOR CAUSE. The Corporation may at any time
during the Term, without any prior notice, terminate this Agreement and
discharge Executive for Cause, whereupon the Corporation's obligation to pay
compensation or other amounts payable hereunder to or for the benefit of
Executive shall terminate on the date of such discharge. As used herein the term
Cause shall mean: (i) a willful and material breach by Executive of the terms of
this Agreement' which breach shall not have been cured within thirty (30) days
of writen notice of such breach; (ii) willful violation of specific and lawful
written direction from the Board of Directors of the Corporation, which
violation shall not have been cured within thirty (30) days of written notice of
such violation, provided such direction is not inconsistent with the Executive's
duties and responsibilities as the Chairman of the Board, Chief Executive
Officer and President of the Corporation; or (iii) conviction of the Executive
of a felony by a federal or state court of competent jurisdiction, which felony
is directly and materially related to or arises out of Executive's employment
with the Corporation. The obligations of the Executive under Section 10 shall
continue notwithstanding termination of the Executive's employment pursuant to
this Section 9.3.
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9.4 TERMINATION WITHOUT CAUSE. The Corporation shall have the
option to terminate this Agreement Without Cause upon sixty (60) days' written
notice to the Executive. In the event the Corporation terminates this Agreement
without Cause as defined above, the Corporation shall pay the Executive upon
termination, the amount required pursuant to Section 5.1. The obligations of the
Executive under Section 10 hereof shall continue notwithstanding termination of
the Executive's employment pursuant to this Section 9.4.
9.5 TERMINATION BY EXECUTIVE FOR GOOD REASON. The Executive
shall have the right to terminate this Agreement for Good Reason, as hereinafter
defined, upon written notice to the Corporation. Good Reason shall mean any of
the following: (i) the assignment to the Executive of duties inconsistent with
the Executive's position, duties, responsibilities, titles or offices as
described herein; (ii) any material reduction by the Corporation of the
Executive's duties and responsibilities (including the appointment, without the
Executive's consent, of an Executive officer senior to him in his position);
(iii) any reduction by the Corporation of the Executive's compensation or
benefits payable hereunder (it being understood that a reduction of benefits
applicable to all executives of the Corporation, including the Executive, shall
not be deemed a reduction of the Executive's compensation package for purposes
of this definition); (iv) requiring the Executive to be based without his
consent at a location not within reasonable commuting distance of the normal
work location of the Executive; (v) the Corporation sells, transfers or
discontinues the uses of any or all of the patents, trademarks, tradenames,
machinery, or other assets (other than inventory in the ordinary course of
business or assets that may become obsolete or depleted over time) relating to,
or discontinues the operations of or otherwise ceases to engage in, the
Corporation's normal business; or (vi) the Corporation fails to make equity
infusions or capital investments to the Corporation's normal business.
9.6. TERMINATION BY EXECUTIVE UPON CHANGE IN CONTROL.
Executive, at his option, shall be able to terminate this Agreement upon written
notice given to the Secretary of the Corporation within ninety (90) days of an
occurrence of a "Change in Control". A "Change in Control" of the Corporation
shall mean a change in control of the Corporation or any entity controlling the
Corporation (referred to collectively in this Section 5 as the Corporation) of a
nature that would be required to be reported in response to Item 1 of a Current
Report on Form 8-K, 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" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act),
other than a person who or which was a shareholder of the Corporation
immediately prior to the Corporation's initial public offering (the "IPO")
(other than Global Medical Holdings, Inc., a Florida corporation), is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Corporation representing
twenty-five percent (25%) or more of the combined voting power of the
Corporation's outstanding securities ordinarily having the right to vote at
elections of directors; or (b) individuals who constitute the Board concurrent
with the execution of this Agreement (the incumbent Board) cease for any reason
to constitute at least a majority thereof, provided that any person becoming a
director subsequent to the date hereof whose election or nomination for election
by the Corporation's shareholders was approved by a vote of at least three
quarters of the
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directors comprising the Incumbent Board, shall be, for purposes of this clause
(b), considered as though he were a member of the Incumbent Board; or (c) a sale
by the Corporation of all or substantially all of its assets occurs.
Notwithstanding anything in the foregoing to the contrary, no Change in Control
shall be deemed to have occurred for purposes of this Agreement by virtue of any
transactions which result in the acquisition by the Executive, or by a group of
persons which includes the Executive, directly or indirectly, of a majority of
either the outstanding shares of common stock of the Corporation or the voting
securities of any corporation which acquires all or substantially all of the
assets of the Corporation, whether by way of merger, consolidation, sale of such
assets or otherwise.
10. PROTECTION OF CONFIDENTIAL INFORMATION.
In view of the fact that Executive's work for the Corporation will
bring him into close contact with confidential information and plans for future
developments, Executive agrees to the following:
10.1 SECRECY. To keep secret and retain in the strictest
confidence all confidential matters of the Corporation, including, without
limitation, trade "know how" and trade secrets, customer lists, pricing
policies, marketing plans, technical processes, formulae, inventions and
research projects, and other business affairs of the Corporation, learned by him
heretofore or hereafter, and not to disclose them to anyone inside or outside of
the Corporation, except in the course of performing the Services hereunder or
with the express written consent of the Chief Executive Officer or Board of
Directors of the Corporation and except to the extent SUCH information is
already known to the general public
10.2 RETURN MEMORANDA, ETC. To deliver promptly to the
Corporation on termination of his employment, or at any other time as the Chief
Executive Officer or the Board of Directors of the Corporation may so request,
all memoranda, notes, records, reports, manuals, drawings, blueprints and other
documents (and all copies thereof) relating to the Corporation's business and
all property associated therewith, which he may then possess or have under his
control.
10.3 COVENANTS.
10.3.1 NON-COMPETITION. EXECUTIVE agrees that at all
times while he is employed by the Corporation and, regardless of the reason for
termination of his employment or this Agreement, for a period of one (1) year
thereafter, he will not, as a principal, agent, employee, employer, consultant,
stockholder, investor, director or co-partner of any person, firm, corporation
or business entity other than the Corporation, or in any individual or
representative capacity whatsoever, directly or indirectly, without the express
prior written consent of the Corporation:
(i) engage or participate in any business whose products or services
are competitive with that of the Corporation, which business is the
hold certain companies as subsidiaries,
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conducts or solicits business, or transacts with supplier or customers
located within the United States;
(ii) aid or counsel any other person, firm, corporation or business
entity to do any of the above, accept as may have been contracted prior
to Executives term of service;
(iii) become employed by a firm, corporation, partnership or joint
venture which competes with the business of the Corporation within the
United States; or
(iv) approach, solicit business from, or otherwise do business or deal
with any customer of the Corporation in connection with any product or
service competitive to any provided by the Corporation.
10.3.2 ANTI-RAIDING. Executive agrees that during the
term of his employment hereunder, and, thereafter for a period of one (1) year,
he will not, as a principal, agent, employee, employer, consultant, director or
partner of any person, firm, corporation or business entity other than the
Corporation, or in any individual or representative capacity whatsoever'
directly or indirectly, without the prior express written consent of the
Corporation approach, counsel or attempt to induce any person who is then in the
employ of the Corporation to leave the employ of the Corporation or employ or
attempt to employ any such person or persons who at any time during the
preceding six months was in the employ of the Corporation.
10.3.3 EXECUTIVE'S ACKNOWLEDGEMENTS. Executive
acknowledges (I) that his position with the Corporation requires the performance
of services which are special, unique, and extraordinary in character and places
him in a position of confidence and trust with e Customers and employees of the
Corporation, through which, among other things, he shall obtain knowledge of the
Corporation's "technical information" and "know-how" and become acquainted with
its customers, in which matters the Corporation has substantial proprietary
interests; (ii) that the restrictive covenants set forth above are necessary in
order to protect and maintain such proprietary interests and the other
legitimate business interests of the Corporation; and (iii) that the Corporation
would not have entered into this Agreement unless such covenants were included
herein.
Executive also acknowledges that the business of the
Corporation presently will extend throughout the United States, and that he will
personally supervise and engage in such business on behalf of Corporation and,
accordingly, it is reasonable that the restrictive covenants set forth above are
not more limited as to geographic area then is set forth therein. Executive also
represents to the Corporation that the enforcement of such covenants will not
prevent Executive from earning a livelihood or impose an undue hardship on the
Executive.
10.4 SEVERABILITY. If any of the provisions of this Section
10, or any part thereof, is hereinafter construed to be invalid or
unenforceable, the same shall not affect the remainder of such provision or
provisions, which shall be given full effect, without regard to the invalid
portions. If any of the provisions of this Section 10, or any part thereof, is
held to be
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unenforceable because of the duration of such provision, the area covered
thereby or the type of conduct restricted therein, the parties agree that the
court making such determination shall have the power to modify the duration,
geographic area and/or other terms of such provision and, as so modified, said
provision(s) shall then be enforceable. In the event that the courts of any one
or more jurisdictions shall hold such provisions wholly or partially
unenforceable by reason of the scope thereof or otherwise, it is the intention
of the parties hereto that such determination not bar or in any way affect the
Corporation's right to the relief provided for herein in the courts of any other
jurisdictions as to breaches or threatened breaches of such provisions in such
other jurisdictions, the above provisions as they relate to each jurisdiction
being, for this purpose, severable into diverse and independent covenants.
10.5 INJUNCTIVE RELIEF. Executive acknowledges and agrees
that, because of the unique and extraordinary nature of his services, any breach
or threatened breach of the provisions of Sections 10.1, 10.2, or 10.3 hereof
will cause irreparable injury and incalculable harm to the Corporation, and the
Corporation shall, accordingly, be entitled to injunctive and other equitable
relief for such breach or threatened breach and that resort by the Corporation
to such injunctive or other equitable relief shall not be deemed to waive or to
limit in any respect any right or remedy which the Corporation may have with
respect to such breach or threatened breach. The Corporation and Executive agree
that any such action for injunctive or equitable relief shall be heard in a
state or federal court situate in Rhode Island and each of the parties hereto,
hereby agrees to accept service of process by registered mail and to otherwise
consent to the jurisdiction of such courts.
10.6 EXPENSES OF ENFORCEMENT OF COVENANTS. In the event that
any action, suit or proceeding at law or in equity is brought to enforce the
covenants contained in Sections 10.1, 10.2, or 10.3 hereof or to obtain money
damages for the breach thereof, the party prevailing in any such action, suit or
other proceeding shall be entitled upon demand, to reimbursement from the other
party for all expenses (including, without limitation, reasonable attorneys'
fees and disbursements) incurred in connection therewith.
10.7 SEPARATE AGREEMENT. The provisions of this Section 10
shall be construed as an agreement on the part of the Executive independent of
any other part of this Agreement or any other agreement, and the existence of
any claim or cause of action of the Executive against the Corporation, whether
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Corporation of the provisions of this Section 10.
11. INDEMNIFICATION.
The Corporation shall provide the Executive (including his heirs,
executors and administrators) with coverage under a standard directors and
officers liability insurance policy at the Corporation's expense to the same
extent as provided for any other director, officer or trustee
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of the Corporation. In addition, the Corporation shall indemnify the Executive
(and his heirs, executors and administrators) to the fullest extent permitted
under the law of its state of incorporation against all expenses and liabilities
reasonably incurred by him in connection with or arising out of any action, suit
or proceeding in which the Executive may be involved by reason of his having
been a director or officer of the Corporation or any subsidiary thereof. Such
expenses and liabilities shall include, but not be limited to, judgments, court
costs and attorneys' fees and the cost of reasonable settlements, such
settlements to be approved by the Board if such action is brought against the
Executive in his capacity as a director or officer of the Corporation or any
subsidiary thereof. The Corporation shall, upon the request of the Executive,
advance to the Executive such amounts as necessary to cover expenses, including
without limitation legal fees and expenses, incurred by the Executive in
connection with any suit or proceeding in which the Executive may be involved by
reason of his being or having been a director or officer of the Corporation or
of any subsidiary thereof. Such indemnity and advance of expenses, however,
shall not extend to matters as to which the Executive is finally adjudged to be
liable for wilful misconduct in the performance of his duties.
12. ARBITRATION.
Except with respect to any proceeding brought under Section 10 hereof,
any controversy, claim, or dispute between the parties, directly or indirectly,
concerning this Employment Agreement or the breach hereof, or the subject matter
hereof, including questions concerning the scope and applicability of this
arbitration clause, shall be finally settled by arbitration in Reston Virginia
pursuant to the rules then applying of the American Arbitration Association The
arbitrators shall consist of one representative selected by the Corporation, one
representative selected by the Executive and one representative selected by the
first two arbitrators The parties agree to expedite the arbitration proceeding
in every way, so that the arbitration proceeding shall be commenced within
thirty (30) days after request therefore is made, and shall continue thereafter,
without interruption, and that the decision of the arbitrators shall be handed
down within thirty (30) days after the hearings in the arbitration proceedings
areclosed. The arbitrators shall have the right and authority to assess the cost
of the arbitration proceedings and to determine how their decision or
determination as to each issue or matter in dispute may be implemented or
enforced. The decision in writing of any two of the arbitrators shall be binding
and conclusive on all of the parties to this Agreement. Should either the
Corporation or the Executive fail to appoint an arbitrator as required by this
Section 12 within thirty (30) days after receiving written notice from the other
party to do so, the arbitrator appointed by the other party shall act for all of
the parties and his decision in writing shall be binding and conclusive on all
of the parties to this Employment Agreement. Any decision or award of the
arbitrators shall be final and conclusive on the parties to this Agreement;
judgment upon such decision or award may be entered in any competent Federal or
state court located in the United States of America; and the application may be
made to such court for confirmation of such decision or award for any order of
enforcement and for any other legal remedies that may be necessary to effectuate
such decision or award.
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13. NOTICES.
All notices, requests, consents and other communications required or
permitted to be given hereunder, shall be in writing and shall be deemed to have
been duly given if delivered personally or sent by prepaid telegram, telecopy or
mailed first-class, postage prepaid, by registered or certified mail (notices
sent by telegram or mailed shall be deemed to have been given on the date sent),
to the parties at their respective addresses hereinabove set forth or to such
other address as either party shall designate by notice in writing to the other
in accordance herewith. Copies of all notices shall be sent to the addresses
described in the recitals unless noticed in writing of a change.
14. GENERAL.
14.1 GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the local laws of the State of Florida
applicable to agreements made and to be performed entirely in Florida.
14.2 CAPTIONS. The section headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
14.3 ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement and understanding of the parties relating to the subject matter
hereof, and supersedes all prior agreements, arrangements and understandings,
written or oral, relating to the subject matter hereof. No representation,
promise or inducement has been made by either party that is not embodied in this
Agreement, and neither party shall be bound by or liable for any alleged
representation' promise or inducement not so set forth.
14.4 SEVERABILITY. If any of the provisions of this Agreement
shall be unlawful, void, or for any reason, unenforceable, such provision shall
be deemed severable from, and shall in no way affect the validity or
enforceability of, the remaining portions of this Agreement.
14.5 WAIVER. The waiver by any party hereto of a breach of any
provision of this Agreement by any other party shall not operate or be construed
as a waiver of any subsequent breach of the same provision or any other
provision hereof.
14.6 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same Agreement.
14.7 ASSIGNABILITY. This Agreement, and Executive's rights and
obligations hereunder, may not be assigned by Executive. The Corporation may
assign its rights, together with its obligations, hereunder in connection with
any sale, transfer or other disposition of all or substantially all of its
business or assets; in any event the rights and obligations of the Corporation
hereunder shall be binding on its successors or assigns, whether by merger,
consolidation or acquisition of all or substantially all of its business or
assets; provided, however, that any such assignment shall not release the
Corporation from its obligations hereunder. This Agreement shall inure to the
benefit of, and be binding upon, the Executive and his executors,
administrators, heirs and legal representatives.
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14.8 AMENDMENT. This Agreement may be amended, modified,
superseded, cancelled, renewed or extended and the terms or covenants hereof may
be waived, only by a written instrument executed by both of the parties hereto,
or in the case of a waiver, by the party waiving compliance. No superseding
instrument, amendment, modification, cancellation, renewal or extension hereof
shall require the consent or approval of any person other than the parties
hereto. The failure of either party at any time or times to require performance
of any provision hereof shall in no matter affect the right at a later time to
enforce the same. No waiver by either party of the breach of any term or
covenant contained in this Agreement, whether by conduct or otherwise, in any
one or more instances, shall be deemed to be, or construed as, a further or
continuing waiver of any such breach, or a waiver of the breach of any other
term or covenant contained in this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ATTEST: EMPLOYER
By: /s/ By: /s/
------------------------------- -------------------------------------
Name: Name:
Title: Title: Secretary
WITNESS:
/s/ /s/
-------------------------- -----------------------------------
Xxxxxxx Xxxxx, individually
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