EXHIBIT 10.33
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 11th day of
July, 1997, by and between ENDEAVOR TECHNOLOGIES INC., a Georgia corporation
("ETI"), and W. XXXXXXX XXXXXX, an individual (the "Executive"), and is
effective as of the date hereof.
WHEREAS, Executive is expected to make a significant contribution to the
success and development of ETI in his role as a Director and the Chief Operating
Officer of ETI; and
WHEREAS, Executive is willing to render services to ETI on the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by Executive and ETI including,
without limitation, the promises and covenants described herein, the parties
hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
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EMPLOYMENT
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Section 1.1 Term of Employment. The term of Executive's employment
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hereunder shall commence on or before August 18, 1997 and continue for a period
of two (2) years, unless earlier terminated as provided in this Agreement. At
the end of the second year of the initial two-year term, this Agreement shall
automatically be extended for an additional one-year term unless either party
hereto shall give written notice of its or his intent to terminate one hundred
eighty (180) days prior to the end of the second year of the initial two-year
term.
Section 1.2 Duties and Responsibilities of Executive. Executive is hereby
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employed full time as the Chief Operating Officer of ETI, shall do and perform
all services and acts necessary or advisable to fulfill the duties of such
offices, and shall conduct and perform such additional services and activities
as may be determined from time to time by the Board of Directors or the
President/CEO of ETI, as applicable. During the term of this Agreement,
Executive shall devote his full time, energy and skill to the business of ETI
and to the promotion of ETI's interests, and Executive acknowledges that he has
a duty of loyalty to ETI and shall not engage in, directly and indirectly, any
other business or activity that could materially and adversely affect ETI's
business or the Executive's ability to perform his duties under this Agreement.
In his capacity as an officer of ETI, Executive shall report to the
President/CEO of ETI. Executive's authority and responsibility in ETI shall at
all times be subject to the review and discretion of the Board of Directors, who
shall have the final authority to make decisions regarding the business of ETI.
Section 1.3 Compensation. For all services to be rendered by Executive
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under this Agreement, ETI shall pay Executive as follows:
(a) Base Salary. Executive shall be paid an annual gross salary of One
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Hundred Fifty Thousand Dollars ($150,000) payable bi-weekly. At the sole
discretion of the Board of Directors of ETI, Executive's annual gross salary may
be increased, from time to time, throughout the term of this Agreement, the
amount of any such increase to be determined by the Board of Directors (or by a
compensation committee thereof).
(b) Annual Bonus. Executive shall be paid an annual bonus in an amount
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recommended by the President/CEO of ETI and approved by the Board of Directors
of ETI (or a compensation committee thereof).
Section 1.4 Benefits.
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(a) Relocation Expenses. The parties acknowledge that Executive will
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incur substantial expenses in connection with his relocation from Jacksonville,
Florida to the Atlanta area, including but not limited to moving expenses and
temporary housing costs. Executive's household will be moved from Jacksonville,
Florida to Atlanta, Georgia by a moving company engaged by ETI at ETI's expense.
If Executive elects to lease temporary housing in the Atlanta area, ETI shall
also pay Executive's moving expenses from leased housing to his permanent
housing in the Atlanta area, not to exceed Two Thousand Five Hundred Dollars
($2,500). The real estate sales commission to be paid by Executive on the sale
of his Jacksonville home will be reimbursed by ETI on January 1, 1998 (or
earlier upon a recommendation given at the discretion of the President/CEO of
ETI). All such payments and reimbursements will be made in accordance with ETI's
existing policies including receipt of appropriate documentation. A copy of
those policies will be provided to Executive by September 1, 1997. ETI will
reimburse Executive for the reasonable expenses incurred in up to two house-
hunting trips to the Atlanta area and for one school-hunting/registration trip
made by Executive's spouse and son. Subject to the limitation in the following
sentence, ETI will reimburse Executive for the mortgage interest paid by
Executive on his Jacksonville home on or after October 1, 1997 pending the sale
of the home, net of income tax benefits to Executive from the income tax
mortgage interest deduction. ETI shall have no obligation to reimburse any
amount of mortgage interest in excess of an amount equal to the sum of six
scheduled monthly installments of such mortgage interest without ETI's prior
consent. If Executive delivers to ETI prior to April 1,
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1998 a written request for reimbursement of one or more additional monthly
installments of mortgage interest, then ETI shall not unreasonably withhold or
delay granting its consent to such request.
(b) Vacation. Executive shall be entitled to three weeks paid vacation
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annually during the first three calendar years of his employment by ETI and four
weeks paid vacation during each calendar year thereafter. Any vacation not used
during any calendar year shall be forfeited except that one week's unused
vacation may be carried forward to the year following the year in which such
vacation entitlement accrued.
(c) Life, Disability and Retirement Programs. Executive shall be entitled
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to participate in any life, disability and retirement programs that are
generally offered to or provided for the senior management personnel of ETI,
said programs to be approved by the Board of Directors. ETI agrees to implement
a 401K plan before December 31, 1997 and recommend same to the Boards of
Directors of ETI and its subsidiaries for adoption.
(d) Group Insurance. Executive shall be entitled to participate in such
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group health and dental insurance programs (including family coverage) as may
from time to time be offered generally to all of the other members of the senior
management personnel of ETI and its subsidiaries. Executive's participation
shall be on the same basis (including cost provisions) as such other members of
senior management.
Section 1.5 Stock Options. ETI shall grant Executive options to purchase
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300,000 shares of Common Stock, Series D of ETI (the "Options"), such Options to
be subject to the terms and conditions set forth below. The Options shall be
adjusted for any change in the total issued common shares of ETI (of any class)
due to stock splits and stock dividends so that after the change, the number of
shares subject to the then-outstanding Options bears the same proportion to the
total number of issued common shares of ETI (of all classes) as borne prior to
the change.
(a) Grant, Vesting and Exercise. Options to purchase 300,000 shares
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of Common Stock, Series D shall be granted as of the effective date of this
Agreement and at the exercise price of Two Dollars ($2.00) per each share of
Common Stock, Series D acquired upon exercise (subject to customary
adjustments). It is agreed that Two Dollars ($2.00) is the fair market value of
a share as of the effective date hereof. Said Options shall vest and become
exercisable in accordance with the following schedule and shall remain
exercisable through the fourth anniversary of the effective date of this
Agreement, at which time such Options shall expire unless earlier terminated in
accordance with the provisions hereof. Such Options shall include a provision
requiring Executive to
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execute and deliver a copy of the Restated Shareholders Agreement (as it may be
amended from time to time) among ETI and all of its current shareholders (the
"Restated Shareholders Agreement").
Option for
Number of Date Vested
Shares and Exercisable
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100,000 August 18, 1997
50,000 August 18, 1998
50,000 August 18, 1999
100,000 August 18, 2000
At the effective time and date of a registration statement filed under the
1993 Act for a public offering of any series of ETI's shares, one-half (1/2) of
the Options held by Executive which then have not vested and become exercisable
under the above vesting schedule will immediately vest and become exercisable.
All Options shall vest and become exercisable upon a Change of Control of ETI
which occurs subsequent to the effective time and date of a registration
statement filed under the Securities Act of 1933 ("1933 Act") for a public
offering of any series of ETI's shares. For purposes of this Section 1.5(a), a
"Change of Control" shall mean a change of the possession, direct or indirect,
of the power to direct or cause the direction of management and policies of ETI,
whether through ownership of voting securities, by contract (other than a
commercial contract for goods or non-management services), or otherwise.
Without limitation, a Change of Control shall be deemed to have occurred if any
person or entity that is not on the date hereof the beneficial owner of any
securities of ETI becomes the beneficial owner, directly or indirectly, of 20%
or more of the combined voting power of ETI's outstanding voting securities
ordinarily having the right to vote for the election of directors of ETI.
(b) Return of Options and Repurchase of Shares. (i) In the event
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that Executive voluntarily resigns his employment with ETI prior to August 18,
1999, other than in a resignation following a Constructive Termination (as
defined in Section 3.2(b) below) all then outstanding Options that have been
issued to Executive shall be canceled as of the date of Executive's notice of
voluntary resignation. In the event that Executive voluntarily resigns his
employment with ETI after August 17, 1999, or if Executive resigns his
employment with ETI prior to August 18, 1999 in a resignation following a
Constructive Termination, all then outstanding and exercisable options shall
remain exercisable in full for a period of 120 days after the date of such
notice of voluntary resignation. ETI shall have the option at its sole
discretion to purchase any unexercised Options from the Executive at a price per
share equal to the difference between the exercise price of such Options and the
per share Fair Market Value of the shares of Common Stock underlying such
Options determined as of or before the thirtieth (30th) day
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following the date such notice of voluntary resignation was given, with the Fair
Market Value of such shares of Common Stock to be determined in the manner set
forth in clause (iv) of this Subsection 1.5(b) set forth below. Furthermore, in
the event Executive voluntarily resigns his employment with ETI and no
registration statement filed under the 1933 Act for a public offering of any
series of ETI's shares has become effective, then ETI in its sole discretion to
purchase any shares of Common Stock previously obtained by Executive upon his
exercise of any Options for an amount equal to the Fair Market Value of such
shares of Common Stock. Any such repurchase of shares by ETI shall be
accomplished within 180 days after such receipt of such notice of resignation.
(ii) In the event that Executive's employment with ETI shall be
terminated by ETI for Cause after August 17, 1998 or at any time without Cause,
all then outstanding and unexercised Options shall become exercisable in full as
of the date such notice of termination was given by ETI and shall remain
exercisable in full for a period of 120 days after the date such notice to
termination was given by ETI. ETI shall have the option at its sole discretion
to purchase any unexercised Options from the Executive at a price per share
equal to the difference between the exercise price of such Options and the per
share Fair Market Value of the shares of Common Stock underlying such Options
determined as of or before the thirtieth (30th) day following the date such
notice of termination was given by ETI, with the Fair Market Value of such
shares of Common Stock to be determined in the manner set forth in clause (iv)
of Subsection 1.5(b) appearing below. Furthermore, if no registration statement
filed under the 1933 Act for a public offering of any series of ETI's Common
Stock has become effective, then ETI in its sole discretion may repurchase any
shares of Common Stock previously obtained by Executive upon the exercise of any
Options for an amount equal to the Fair Market Value of such shares of the
shares of Common Stock. Any such repurchase of the shares of Common Stock shall
be accomplished within 180 days after the date such notice of termination was
given by ETI.
(iii) In the event Executive's employment with ETI shall be terminated
by ETI for Cause on or before August 17, 1998, all then outstanding Options will
be canceled, and, if no registration statement filed under the 1933 Act for a
public offering of any series of ETI's Common Stock has become effective, then
ETI in its sole discretion may repurchase any shares of Common Stock previously
obtained by Executive upon his exercise of any Options for an amount equal to
the aggregate amount paid by Executive to ETI in connection with the exercise
price of such Options plus interest at eight percent per annum for the period
Executive owned the Common Stock. Any such repurchase of the shares of Common
Stock shall be accomplished within 180 days after such notice of termination.
(iv) The Fair Market Value of a share of Common Stock, Series D on
the date specified by ETI shall mean (i) the closing sales price of the Common
Stock of ETI on such date on the national securities exchange (treating the
Nasdaq
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National Market System as a national securities exchange) having the greatest
volume of trading in the Common Stock during the thirty (30) day period
preceding the day the value is to be determined or, if such exchange was not
open for trading on such date, the next preceding date on which it was open;
(ii) if the Common Stock is not traded on any national securities exchange, the
average of the closing high bid and low asked prices of the Common Stock on the
over-the-counter market, in arms-length transactions not involving an affiliate
of ETI, on the day such value is to be determined, or in the absence of closing
bids on such day, the closing bids on the next preceding day on which there were
bids; (iii) if the Common Stock also is not traded on the over-the-counter
market, the average net proceeds per share received or the price paid by ETI
with respect to shares of Common Stock of any series sold or purchased by ETI in
arms length transactions during the ninety (90) days preceding the day the value
is to be determined; or (iv) if no such purchase or sale transactions by ETI
have occurred within such ninety (90) day period, the fair market value as
determined in good faith by the Board of Directors of ETI based on (a) such
relevant facts as may be available to such Board, which may include opinions of
independent experts, the price at which recent purchases or sales have been made
by third parties, the book value of the per share, and the ETI's current and
future earnings or (b) an independent appraisal, conducted at ETI's expense, by
a qualified financial appraiser who is reasonably satisfactory to both ETI and
Executive, provided that the selection of method (a) or (b) shall be by mutual
agreement of the Board and Executive.
(c) Initial Public Offering. In the event that ETI shall undertake
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an initial public offering ("IPO") of any series of its stock, pursuant to which
it files a registration statement in accordance with the 1933 Act, notice of the
filing of such registration statement shall be provided to Executive, and upon
the effective date of such registration statement (i) pursuant to and in
accordance with the Restated Shareholders Agreement, each one (1) outstanding
share of Common Stock, Series D will become one (1) share of Common Stock with
all rights of a share of Common Stock, Series A, (ii) pursuant to and in
accordance with Section 1.5(a) above, one-half (1/2) of the Executive's then
unvested Option shall immediately vest and become exercisable, and (iii) ETI
shall have no right to repurchase any shares of Common Stock obtained by his
exercise of any Options.
Section 1.6 Member of Board. Executive will be elected to the Board of
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Directors of ETI at the first regularly scheduled Board meeting following the
effective date hereof.
Section 1.7 Business Expenses. Executive shall be entitled to
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reimbursement of all ordinary and necessary business expenses reasonably
incurred for business travel, communications (including cell phone and pager),
entertainment and meals in connection with the performance of Executive's duties
under this Agreement in accordance with ETI's established policies for
reimbursement of business expenses including an automobile allowance of Five
Hundred Dollars ($500) per month. ETI will also pay the initiation fees,
membership dues and
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assessments for Executive's family membership in a club in the Atlanta area
acceptable to ETI and Executive which would permit Executive to engage in
business entertainment for the benefit of ETI. ETI expects Executive to attend
and participate in continuing education seminars and courses with respect to the
health industry and business management related to his duties, and ETI will
reimburse all ordinary and necessary expenses of such attendance and
participation. ETI will pay for Executive's continuing membership in the Florida
Bar and the State Bar of Georgia and for the expenses of the continuing legal
education courses that are necessary to maintain those memberships, and for
NHLA/AAHA dues. Such continuing education courses and seminars and continuing
legal education issues will be scheduled in consultation with the President/CEO
of ETI to assure coordination of schedules.
ARTICLE II
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COVENANTS OF EXECUTIVE
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Section 2.1 Confidentiality. Executive recognizes the interest of ETI in
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maintaining the confidential nature of its proprietary and other business and
commercial information. In connection therewith, Executive covenants that
during the term of his employment with Company under this Agreement, and for a
period of one (1) year thereafter, Executive shall not, directly or indirectly,
except as authorized by the Board of Directors, publish, disclose or use for his
own benefit or for the benefit of a business or entity other than ETI or
otherwise, any secret or confidential matter, or proprietary or other
information not in the public domain that was acquired by Executive during his
employment, relating to ETI, or any of its subsidiaries' businesses, operations,
customers, suppliers, products, employees, financial affairs or industrial
practices, technology, know-how or intellectual property or other similar
information (the "Proprietary Information").
Executive will abide by ETI's policies and regulations, as established from
time to time, for the protection of its Proprietary Information. Executive
acknowledges that all records, files, data, documents and the like relating to
suppliers, customers, costs, prices, systems, methods, personnel, technology and
other materials relating to ETI or its affiliated entities shall be and remain
the sole property of ETI and/or such affiliated entity and shall, upon the
request of ETI, turn over all copies of such Proprietary Information to ETI
(together with a written statement certifying as to his compliance with the
foregoing).
Section 2.2 Non-Solicitation of Customers and Non-Competition. During the
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term of his employment with ETI, and for a period of one (1) year thereafter,
Executive shall not directly or indirectly, through one or more intermediaries
or otherwise, solicit, direct or appropriate, or attempt to solicit, direct or
appropriate any individual or entity which was, at the time of termination of
Executive's employment, a customer or client of ETI for the purpose of providing
a service or product to such customer or client which is the same type of
service or product
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offered or provided by ETI at the time of termination of Executive's employment,
with ETI. The parties acknowledge that the "same type of service" would include
tracking symptoms or patients by means of telephone transmission.
During the Executive's employment with ETI, and for the one (1) year period
following the termination of Executive's employment with ETI for any reason,
Executive shall not, without the prior written consent of the Board of
Directors, which consent may be withheld at the sole discretion of the Board of
Directors, engage or participate in, as a business executive or equity owner,
the management or conduct of any business or enterprise that directly competes
in any geographical area with any line of business in which ETI was engaged in
at the time of termination of Executive's employment with ETI; provided,
however, that nothing in this Section 2.2 shall prohibit Executive from
acquiring or holding, for investment purposes only, less than five percent (5%)
of the outstanding publicly traded securities of any corporation which may
compete directly or indirectly with ETI.
Section 2.3 Non-Solicitation of Employees. During the term of Executive's
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employment with ETI, and for a period of one (1) year thereafter (the "Non-
solicitation Period"), Executive shall not, directly or indirectly, through one
or more intermediaries or otherwise, employ, induce, solicit for employment, or
assist others in employing, inducing or soliciting for employment any individual
who is at any time during the Non-solicitation Period an employee of ETI for the
purpose of providing services that are the same or similar to the types of
services offered or engaged in by ETI at the time of termination of Executive's
employment with ETI.
Section 2.4 Trade Secrets. The Executive shall not, at any time, either
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during the term of his employment or after any termination of employment, use or
disclose any Trade Secrets (as defined under applicable law) of ETI or its
subsidiaries, except in fulfillment of his duties as the Executive during his
employment, for so long as the pertinent information or data remain Trade
Secrets, whether or not the Trade Secrets are in written or tangible form.
ARTICLE III
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TERMINATION OF EMPLOYMENT
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Section 3.1 Termination by Company. Executive's employment may be
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terminated by ETI by giving notice during the term of this Agreement upon the
occurrence of one or more of the following events:
(a) Executive's death or disability which renders Executive incapable
of performing his duties for more than one hundred twenty (120) calendar days in
one calendar year or within consecutive calendar years (termination under this
Section 3.1(a) shall be deemed termination without Cause);
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(b) for any reason following a determination by the Board of
Directors of ETI to terminate Executive's employment (termination under this
Section 3.1(b) shall be deemed termination without Cause); or
(c) "for Cause," which for purposes of this Agreement shall mean that
the Executive shall have committed:
(i) an intentional act of fraud, embezzlement or theft in
connection with his duties or in the course of his employment with ETI;
(ii) intentional wrongful damage to any material assets of ETI;
(iii) intentional wrongful disclosure of Proprietary Information
or Trade Secrets of ETI or its affiliates;
(iv) conviction of a felony or any similar crime involving
dishonesty or moral turpitude and carrying a prison term of at least one year
(regardless of whether imprisonment is actually imposed);
(v) habitual and debilitating use of alcohol or drugs; or
(vi) the failure of the Executive to meet performance
expectations, as determined and articulated by a majority of the members of
ETI's Board of Directors other than Executive; provided, however, that in the
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event of this clause (vi) being the sole reason for a termination for Cause,
Executive shall have the cure provisions and rights provided for in Section
3.1(d) hereof and clause (ii) of Section 3.2(c) hereof.
(d) In the event of a determination by ETI's Board of Directors to
terminate Executive's employment under clause (vi) of Section 3.1(c) based
solely on the failure of Executive to meet performance expectations, then ETI
shall furnish to Executive in writing a notice of proposed termination setting
forth a specific statement of the deficiencies in his performance. Executive
shall then have a period of ninety (90) days after the giving of such written
notice of proposed termination by ETI in which to attempt to effect a cure of
the specified deficiencies. If at the end of such ninety (90) day period no such
cure has been effected to the reasonable satisfaction of the Board of Directors
of ETI, then Executive's employment shall be terminated as of the end of such
ninety (90) day period. ETI shall be obligated to provide to Executive only one
such notice of proposed termination, and if subsequent to effecting a cure of
specified deficiencies the Executive is determined by the Board of Directors to
have again failed to meet performance expectations, then his employment may be
terminated immediately upon ETI's giving of notice of termination to Executive
which specifies his deficiencies in performance.
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Section 3.2 Severance. For purposes of this Agreement, Executive's
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entitlement to any severance payments upon termination of his employment shall
be as set forth below:
(a) Termination Without Cause. Executive shall be entitled to 12
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months salary continuation, payable in bi-weekly installments, and continued
participation in ETI's group health and dental insurance program upon the timely
periodic payment of the amount required by ETI for employees to maintain family
coverage for such programs, as severance pay in the event that the Executive's
employment is terminated without Cause, commencing as of the date of Executive's
death or disability for purposes of Section 3.1(a), or the date specified in a
notice given under Section 3.1(b), or the date of Constructive Termination (as
defined below). Executive's resignation following a Constructive Termination
shall be deemed a termination without Cause.
(b) Voluntary Termination. Executive shall not receive any
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severance pay in the event that he voluntarily resigns his employment with ETI
(other than a resignation following a Constructive Termination) unless such
severance pay is approved by the Board of Directors of ETI in its sole
discretion. Executive shall provide a minimum of thirty (30) days prior notice
to the President and CEO of his resignation. In the event Executive shall
provide thirty (30) days prior written notice of his intent to resign, ETI may
accept such resignation effective as of any date during such thirty (30) day
period as ETI deems appropriate, provided that Executive shall receive from ETI
his salary and be entitled to participate at ETI's expense in any Company
sponsored benefit programs in which he was a participant as of the effective
date of his resignation for the duration of such thirty (30) day period. For
purposes of this Agreement, "Constructive Termination" shall mean:
(i) Such change in duties or position as:
(a) The assignment (other than an occasional temporary
assignment) to Executive of any duties not
commensurate with Executive's position, duties,
responsibilities and status with ETI;
(b) A material change in Executive's reporting
responsibilities, (i.e., reporting to a lower tier)
or a diminution in Executive's titles or offices; or
(c) A material diminution of Executive's authority or
responsibilities.
(ii) A reduction in Executive's base salary specified in
Section 1.3(a) for the calendar year 1997, and a reduction
in Executive's base salary in effect for the prior
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calendar year for all succeeding years (other than pro
rata reductions in compensation for all senior management
of ETI and its subsidiaries).
(iii) The requirement that Executive be based anywhere other
than within 50 miles of ETI's current offices.
(c) For Cause. Executive shall not be entitled to any severance pay
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whatsoever in the event that his employment is terminated "for Cause" pursuant
to Section 3.1(c) of this Agreement, unless (i) severance pay is approved by the
Board of Directors of ETI in its sole discretion, or (ii) Executive's employment
is terminated based solely on non-performance pursuant to clause (vi) of Section
3.1(c), in which event Executive shall be entitled to three (3) months salary
continuation and continued participation in ETI's group health and dental
insurance program upon timely periodic payment of the amount required by ETI for
employees to maintain family coverage for such programs.
ARTICLE IV
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GENERAL PROVISIONS
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Section 4.1 Withholding of Taxes. ETI may withhold from any amounts
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payable under this Agreement all federal, state, city or other taxes and
withholdings as shall be required pursuant to any applicable law, rule or
regulation.
Section 4.2 Notice. For purposes of this Agreement, all communications
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including, without limitation, notices, consents, requests or approvals,
provided for herein shall be in writing and shall be deemed to have been duly
given (i) when personally delivered, (ii) on the day of transmission when given
by facsimile transmission with confirmation of receipt, (iii) on the following
day if submitted to a nationally recognized courier service, or (iv) five (5)
business days after having been mailed by United States registered mail or
certified mail, return receipt requested, postage prepaid, addressed to ETI (to
the attention of the Secretary of ETI) at its principal executive office or to
Executive at his principal residence, or to such other address as any party may
have furnished to the other in writing and in accordance herewith, except the
notices of change of address shall be effective only upon receipt.
Section 4.3 Governing Law. The validity, interpretation, construction,
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performance and enforcement of this Agreement shall be governed by the laws of
the State of Georgia, without giving effect to the principles of conflict of
laws of such State.
Section 4.4 Validity. If any provision of this Agreement or the
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application of any provision hereof to any person or circumstances is held
invalid, unenforceable or otherwise illegal, the remainder of this Agreement and
the application of such
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provision to any other person or circumstances shall not be affected, and the
provision so held to be invalid, unenforceable or otherwise illegal shall be
reformed to the extent (and only to the extent) necessary to make it valid,
enforceable and legal; provided, however, if the provision so held to be
invalid, unenforceable or otherwise illegal constituted a material inducement to
a party's execution and delivery of this Agreement, such provision shall not be
reformed unless prior to any reformation that party agrees to be bound by the
reformation.
Section 4.5 Entire Agreement. This Agreement supersedes any other
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agreements, oral or written, between the parties with respect to the subject
matter hereof, and contains all of the agreements and understandings between the
parties with respect to the employment of Executive by ETI. Any waiver or
modification of any term of this Agreement shall be effective only if it is set
forth in a writing signed by all parties hereto.
Section 4.6 Successors and Binding Agreement.
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(a) This Agreement shall be binding upon and inure to the benefit of
ETI and any Successor of or to ETI, but shall not be otherwise be assignable or
delegable by ETI. "Successor" shall mean any successor in interest, including,
without limitation, any entity, individual or group of persons acquiring
directly or indirectly all or substantially all of the business or assets of
ETI, whether by sale, merger, consolidation, reorganization or otherwise.
(b) ETI shall require any Successor to agree at the time of becoming
a Successor to perform this Agreement to the same extent as the original parties
would be required if no succession had occurred.
(c) This Agreement shall inure to the benefit of and be enforceable
by Executive's personal or legal representatives, executors, administrators,
heirs, distributees and legatees.
(d) This Agreement is personal in nature and neither of the parties
shall, without the consent of the other, assign, transfer or delegate this
Agreement or any rights or obligations hereunder except as expressly provided in
this Section 4.6.
Section 4.7 Captions. The captions in this Agreement are solely for
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convenience of reference and shall not be given any effect in the construction
or interpretation of this Agreement.
Section 4.8 Miscellaneous. No provisions of this Agreement may be
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modified, waived or discharged unless such waiver, modification or discharge is
agreed to in a writing signed by Executive and ETI. No waiver by a party hereto
at any time of any breach by another party hereto or compliance with any
condition or provision of this Agreement to be performed by such other party
shall be deemed a
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waiver of similar or dissimilar provision or conditions at the same or at any
prior or subsequent time.
Section 4.9 Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
"Company"
ENDEAVOR TECHNOLOGIES INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx, President and Chief
Executive Officer
EXECUTIVE
/s/ W. Xxxxxxx Xxxxxx
-----------------------------------------
W. Xxxxxxx Xxxxxx
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