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Exhibit 10.30
[SYKES LOGO]
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 TERMS AND PROVISIONS OF THIS AGREEMENT ARE NOT
FULLY UNDERSTOOD BY YOU.
THIS AGREEMENT is made as of the 31st day of July, 2000, by and
between XXXXX ENTERPRISES, INCORPORATED, a Florida corporation (the "Company"),
and XXXXXXXX XXXXXX (the "Executive").
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, the Company desires to assure itself of the Executive's
continued employment in an executive capacity; 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 tents and conditions of
this Agreement, the Company shall employ the Executive during the Term (as
hereinafter defined) in such management capacities as may be assigned from time
to time by the Company. The Executive accepts such employment and ages 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 Executive shall promptly cease such
activities to the extent as directed by the Board of Directors. 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. Subject to the terms 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 through and including
the close of business on the date hereof as set forth on Exhibit A attached
hereto and incorporated herein (such term shall herein be defined as the
"Term"). The Executive agrees that some portions of this Agreement, including
Sections 4, 5, and 6 hereof, will remain in force after the termination of
this Agreement.
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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 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 to a performance bonus set forth
on Exhibit A and to participate in and receive payments from, at the Company's
election, other bonus and other incentive compensation plans, if any, as may be
adopted by the Company.
(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 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.
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 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 Executives
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/her 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/her 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 (developer) 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;
(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/her 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.
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(c) Restrictions on Executive. During the term of this
Agreement and for a period of time set forth on Exhibit A 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, 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 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 received
information through Employer 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 registered under Section 12 of the
Securities Exchange Act of 1934, as amended; or
(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 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 arid enforced under the
laws of the State of Florida. In the event of any breach of this
Covenant.
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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 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.
6. Termination
(a) Death. The Executive's employment hereunder shall
terminate upon his death.
(b) Disability. If during the Term 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.
(c) Cause. The Company may terminate the Executive's
employment hereunder for Cause effective immediately upon notice. For
proposes 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
engages in conduct which could expose the Company to a claim for
sexual harassment; (iii) 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; (iv) for the Executive's neglect of his
duties hereunder or the Executive's refusal to perform his duties or
responsibilities hereunder as determined by the Company's Board of
Directors in good faith; (v) consistent failure to achieve goals
established by the Board of Directors or their designate; (vi) gross
incompetence; (vii) for the Executive's violation of this Agreement,
including, without limitation, Section 5 hereof; (viii) chronic
absenteeism; (ix) for use of illegal drugs; (x) insobriety by the
Executive while performing his or her duties hereunder, and (xi) for
any act of dishonesty or falsification of reports, records, or
information submitted by the Executive to the Company.
(d) Non-Compete Payment and Liquidated Damages. 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 a termination
by the Company of the Executive's employment with the Company for any
reason other than pursuant to Section 6(c), the Company shall pay the
Executive Liquidated Damages as defined in (e) below for early
termination of his employment and the Covenant Not-to-Compete set
forth in Section 5 hereof shall remain in full force and effect
through the full stated Term of this Agreement; and additionally, from
the end of the Term of this Agreement through the non-compete period
stated on Exhibit "A", the Company shall pay the Executive
Not-to-Compete pay 'in equal biweekly installments ("Non-Compete
Payment Installments') in the amount set forth on Exhibit A
("Non-Compete Payment"). Such Non-
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Compete Payment, however, shall not be required to be paid by the
Company if the Company elects, in its sole discretion to release the
Executive from the Covenant not-to-compete set forth in Section 5
hereof. Additionally, if the Company commences paying Executive
Non-Compete Payment Installments and subsequently elects in the
future, in its sole discretion, to release Executive from the Covenant
Not-to-Compete and gives notice to Executive, their, at the effective
date of such notice, Executive shall no longer be subject to the
Covenant Not-to-Compete, and no further Non-Compete Payment
Installments shall be due or payable to Executive. If the Company
terminates the Executive's employment pursuant to Section 6(c) or the
Executive terminates such employment, time Executive shall not be
entitled to the Non-Compete Payment, and the Covenant Not-to-Compete
set forth in Section 5 hereof shall remain in full force and effect.
Notwithstanding anything to the contrary herein contained, the
Executive shall receive all compensation and other benefits to which
he was entitled under this Agreement or otherwise as an executive of
the Company through the termination date.
(e) The Liquidated Damages amount, if due as provided
above, shall be equal to the weekly amount stated on Exhibit A times
the number of weeks remaining between the early termination date and
the end of Term as stated on Exhibit A ("Liquidated Damages"). This
amount shall be paid biweekly in equal installments over such period.
7. Ownership of Executive Developments
(a) Existing Proprietary Rights. The following patents,
patent applications, copyrights, trade secrets, and trademarks are the
only intangible interests and properties that the Executive owns, or
has any claim in, at the time of execution of this Agreement: NONE
(b) Ownership of Work Product.
(1) To the maximum extent permitted by law, Company shall
own all Work Product (as defined in paragraph (5)). All Work Product
shall be considered work made for hire by the Executive.
(2) If any of the Work Product may not, by operation of
law, be considered work made for hire by the Executive for Company, or
if ownership of all right, title, and interest of the intellectual
property rights therein shall not otherwise vest exclusively in
Company, the Executive agrees to assign, and upon creation thereof
automatically assign, without further consideration and without the
necessity for the execution of further instruments or documents, the
ownership of all trade secrets, U.S. and international copyrights,
patentable inventions, and all intellectual property rights therein to
Company, its successors, and assigns to the maximum extent permitted
by law.
(3) Company and its successors and assigns shall have
the right to obtain and hold in its or their own name patents,
copyrights, registrations, and any other protection available in the
foregoing.
(4) The Executive agrees to perform upon the reasonable
request of Company, during or after his employment, such further acts
as may be necessary or desirable to transfer, perfect, and defend
Company's ownership of the Work Product. When requested, the Executive
will:
(i) execute, acknowledge, and deliver any
requested affidavits and documents of
assignment and conveyance;
(ii) obtain and aid in the enforcement of
copyrights, and, if applicable, patents
with respect to the Work product in any
countries;
(iii) provide testimony in connection with any
proceeding affecting the right, title, or
interest of Company in any Work Product;
and
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(iv) perform any other acts deemed necessary or
desirable to carry out, the purposes of
this Agreement.
Company shall reimburse all reasonable out-of-pocket expenses
incurred by the Executive at Company's request in connection with the
foregoing, including (unless the Executive is otherwise being compensated at
the time) a reasonable per diem or hourly fee for services rendered following
termination of the Executive's employment.
(5) For purposes hereof "Work Product" shall mean all
intellectual property, including all trade secrets, U.S. and international
copyrights, patentable inventions, patents, patent applications, discoveries,
concepts, techniques, improvements, works of authorship, and all intellectual
property rights therein that relate to the business and interests of the
Company and its predecessors, successors, affiliates, subsidiaries, and parent
and that the Executive conceives, develops, or delivers to Company at any time
during the term the Executive's employment or for three (3) months after its
expiration or termination for any reason. Work Product shall also include all
intellectual property rights, including all trade secrets, U.S. and
international copyrights, patentable inventions, patents, patent applications,
discoveries, concepts, techniques, improvements, works of authorship, and all
intellectual property rights therein that relate to the business and interests
of Company, its predecessors, successors, affiliates, subsidiaries, and part
and that is now contained in any of the products or systems, including
development and support systems, of Company to the extent the Executive
conceived, developed, contributed to, or delivered such Work Product prior to
the date of this Agreement while the Executive was engaged as an independent
contractor or an Executive of Company, its predecessors, subsidiaries,
affiliates, or parent.
(6) The Executive hereby irrevocably assigns to Company forever
all of his right, title, and interest in and to any and all Work Product. The
Executive hereby also irrevocably relinquishes for the benefit of Company and
its assigns any moral rights in the Work Product recognized by applicable law.
Upon Company's request, the Executive shall take such further actions and
execute and deliver such other instruments as the Company deems necessary or
useful to give full and proper effect to or to record such assignment.
(7) The Executive hereby irrevocably waives, releases, remises,
and forever discharges the Company and its part, successors, predecessors,
subsidiaries, and affiliates, and their respective officers, directors, and
representatives and all persons, corporations or other entities who might be
claimed to be jointly and severally liable with them (the "Released Parties")
from any and all claims, causes of action, suits, damages, fees, and
liabilities of whatever nature or description, whether known or unknown, actual
or contingent, from the beginning of time to the date of the execution of this
Agreement which the Executive or anyone claiming by, through, or under him
might have or could claim against any of the Released Parties, including ,but
not limited to, claims arising out of or related to the Work Product, the
Executive's employment by any of the Released Parties, or promises regarding
the granting of an equity interest in any of the Released Parties. The
Executive shall take such further actions and shall execute and deliver such
other instrument's as the Company deems necessary or useful to give full and
proper effect to or to record this release.
(c) Clearance Procedure for Proprietary Rights Not Claimed by
company. If the Executive, during the Term of employment, ever wishes to create
or develop, on his own time and with his own resources, anything that may be
considered Work Product but to which the Executive believes he should be
entitled to the personal benefit of, the Executive is required to follow the
clearance procedure set forth in this section in order to ensure that Company
has no claim to the proprietary rights that may arise.
Before the Executive begins any development work on his own
time, he must give Company advance notice of his plans and supply a description
of the development under consideration. Unless otherwise agreed in a writing
signed by Company prior to its receipt of such description, Company shall have
no obligation of confidentiality with respect to such description. Company will
determine in good faith within thirty (30) days after the Executive fully
disclosed his plans to Company whether the development is claimed by Company.
If Company determines that it
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does not claim such development, the Executive will be notified in writing and
may retain ownership of the development to the extent of what has been
disclosed to Company. The Executive should submit for further clearance any
significant improvement, modification, or adoption that relates to the business
or interests of Company.
Clearance under this procedure does not relieve the Executive
of the need to obtain the written consent of the Company before engaging in
business activities or rendering business, commercial, or professional services
for the benefit of anyone other than the Company, as required in Section 1 of
this Agreement.
If the Executive is asked to work on any Work Product that is
or potentially might be is conflict with the Executive's intellectual property
created outside the scope of this Agreement, the Executive will promptly notify
the Company in writing of any potential conflict and will not perform any
further work an the Work Product in the area of conflict until notified in
writing by the Company.
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 acknowledges 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 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Sr. VP Human Resources
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, GOVERNING LAW, AND ATTORNEY'S FEES. 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.
Except where required, to enforce the restrictive covenants
regarding Not-to-Compete, No Solicitation, and Confidential Information, as
provided in Sections 4 and 5 of this Agreement, Company and the Executive will
each pay their own attorney's fees and costs in the event Company or the
Executive must enforce any of the other rights granted to them, regardless of
the outcome of any action seeking to enforce rights under this Agreement.
10. 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 or 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
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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 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 party shall be considered
as being responsible for such drafting for the purpose of applying any rule
construing ambiguities against the drafter or otherwise.
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/ Xxxxxxxx Xxxxxx
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Xxxxxxxx Xxxxxx
Address:
000 Xxxxxxx Xxxxx
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Xxxxx, XX 00000
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Group Executive
Senior Vice President
Business Solutions
EXHIBIT A TO EMPLOYMENT AGREEMENT
This Exhibit A is attached to and made a part of that certain
Employment Agreement dated effective July 31, 2000, entered into by and between
Xxxxx Enterprises, Incorporated (the "Company") and Xxxxxxxx Xxxxxx (the
"Executive"), which Employment Agreement supercedes and replaces that certain
Employment Agreement dated August 27, 1999 entered into by and between the
Company and the Executive.
Term: Period of time ending July 30, 2003
Base Salary: $3038.46 per week
Performance Bonus: 0% to 50% of annual base salary
Fringe Benefits: Standard fringe benefits for executives
Stock Options: 60,000 options under the Xxxxx Enterprises,
Incorporated 2000 Stock Option Plan. One third
of the options will vest on each of the first,
second, and third anniversaries of the
effective date of this Agreement.
Covenant Not to Compete: Twelve (12) months
Non-Compete Payment: $1,519.23 per week for 52 weeks
Liquidated Damages: $1,519.23 per week
Directors & Officers Liability: You will be covered by the Company's Directors
and Officer Liability Policy the same as other
officers of the Company.
THE COMPANY RESERVES THE RIGHT, AT ITS SOLE DISCRETION, AT SUCH TIME
OR TIMES AS IT ELECTS, TO CHANGE OR ELIMINATE BONUSES OR OTHER BENEFITS.
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IN WITNESS WHEREOF, the parties have executed this Exhibit A to the
Employment Agreement as of the 31st day of July, 2000.
XXXXX ENTERPRISES, EXECUTIVE
INCORPORATED
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxxxxxx Xxxxxx
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