EXHIBIT 10.17
Cirilium Holdings, Inc.
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of April 1, 2004, is between Cirilium
Holdings, Inc. with its principal offices at 000 X. Xxxxxxx Xx. Xxxxx 000, Xxxx
Xxxx Xxxxx Xxxxxxx 00000 (the "Company") and Xxx Xxxx ("Employee").
THEREFORE, in consideration of the mutual promises and of the
representations, warranties, covenants and agreements herein contained, the
parties hereto, intending to be legally bound according to the terms of this
Agreement, hereby agree as follows:
1. Employment:
The Company shall employ Employee, and Employee hereby accepts such
employment and agrees to perform his duties and responsibilities hereunder, in
accordance with the terms and conditions hereinafter set forth.
1.1 Duties and Responsibilities.
(a) During such time as Employee is employed by the Company, Employee
shall serve as Chief Executive Officer and perform all duties and accept
all responsibilities incidental to such position. Employee shall also serve
on the Board of Directors of the Company.
(b) Employee represents to the Company that he/she is not subject or a
party to any employment agreement, non- competition covenant,
non-disclosure agreement or other agreement, covenant, understanding or
restriction of any nature whatsoever which would prohibit Employee from
executing this Agreement and performing fully his duties and
responsibilities hereunder, or which would in any manner, directly or
indirectly, limit or affect the duties and responsibilities which may now
or in the future be assigned to Employee by the Company.
Cirilium Holdings, Inc. EEA 1
1.2 Extent of Service.
During such time as Employee is employed by the Company, Employee
agrees to use his best efforts to carry out his duties and responsibilities
under Section 1. hereof. Except as provided in Section 5 hereof, the
foregoing shall not be construed as preventing Employee from making
investments in other businesses or enterprises provided that Employee
agrees not to become engaged in any other business activity which may, in
the judgment of the Board of Directors of the Company, interfere with his
ability to discharge his duties and responsibilities to the Company.
1.3 Compensation.
(a) For all the services rendered by Employee hereunder, the Company
shall pay Employee an annual base salary of one hundred twenty thousand
dollars ($120,000).
(b) Stock Participation - In addition to the base salary referenced
above, subject to the terms and conditions contained in Section 1.4(b)
below, Employee will receive annual stock-based compensation in the amount
of five hundred thousand (500,000) shares of restricted common stock in the
Company. These shares shall vest according to the following schedule:
Vesting Date Number of Shares
At the end of the 12th month from the
date of this Agreement 166,666
At the end of the 24th month from the
date of this Agreement 166,666
At the end of the 36th month from the
date of this Agreement 166,666
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(c) Option Participation - In addition to the base salary referenced
above, subject to the terms and conditions contained in Section 1.4(b)
below, Employee will receive annual compensation in the form options
Cirilium Holdings, Inc. EEA 2
to purchase an additional five hundred thousand (500,000) shares of
restricted common stock in the Company at an exercise price of $.0001.
These shares shall vest according to the following schedule:
Vesting Date Number of Shares
At the end of the 12th month from the
date of this Agreement 166,666
At the end of the 24th month from the
date of this Agreement 166,666
At the end of the 36th month from the
date of this Agreement 166,666
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Additional terms and conditions pertaining to such options shall be at
the discretion of the Board of Directors of the Company.
(d) Medical Benefits will be offered by the Company. During the Term,
Employee shall also be entitled to participate in such programs as vacation
pay and other fringe benefit plans authorized from time to time by the
Board of Directors of the Company in its discretion for employees of the
Company.
(e) Additional incentive compensation, if any, shall be at the
discretion of the Board of Directors of the Company.
1.4 Term
(a) This Agreement shall be for a period of three (3) years from the
date hereof (the "Term").
(b) Any shares granted to Employee as yearly compensation pursuant to
Section 1.3(b) and any warrants to purchase shares granted to Employee as
compensation pursuant to Section 1.3(c) shall vest as follows: at the end
of the twelfth (12th) month of this Agreement, those shares and options
granted as compensation for the first year of the Term shall vest; as of
the twenty-fourth (24th) month of this Agreement, those shares and options
granted as compensation for the second year of the Term shall vest; at the
end of the thirty-sixth (36th)
Cirilium Holdings, Inc. EEA 3
month of this Agreement, those shares and options granted as compensation
for the third year of the Term shall vest.
In the event that Employee is terminated Without Cause, as described
in Section 8.4, all shares and options to which Employee would have been
entitled in that twelve-month period will immediately vest on a pro-rata
basis.
2. Expenses:
Employee shall be reimbursed for the reasonable business expenses incurred
by him in connection with his performance of services hereunder during the Term
upon presentation of an itemized account of such expenses in accordance with the
policies and procedures established by the Company. This amount is not to exceed
$500.00 for any single 30-day period without the Secretary or Treasurer's prior
written approval.
3. Developments:
With reference to all developments, including inventions whether patentable
or otherwise; trade secrets; discoveries; improvements; ideas and writings which
either directly or indirectly relate to or may be useful in the business of the
Company or any of its affiliates (the "Developments") which Employee, either by
himself or in conjunction with any other person or persons, has conceived, made,
developed, acquired or acquired knowledge of during his employment by the
Company, Employee hereby assigns, transfers and conveys, and agrees to so
assign, transfer and convey to the Company, all of his right, title and interest
in and to any and all such Developments to the Company. At any time and from
time to time, upon the request and at the expense of the Company, Employee will
execute and deliver any and all instruments, documents and papers, give evidence
and do any and all other acts which, in the opinion of counsel for the Company,
are or may be necessary or desirable to document such transfer or to enable the
Company to file and prosecute applications for and to acquire, maintain and
enforce any and all patents, trademark registrations or copyrights under United
States or foreign law with respect to any such Developments or to obtain any
extension, validation, reissue, continuance or renewal of any such patent,
trademark or copyright. The Company will be responsible for the preparation of
any such instruments, documents and papers and for the prosecution of any such
proceedings and will reimburse
Cirilium Holdings, Inc. EEA 4
Employee for all reasonable expenses incurred by him in compliance with the
provisions of this Section.
4. Confidential Information:
(a) Employee recognizes and acknowledges that by reason of his service to
the Company, he has had, and will continue to have (both during the Term and at
any time thereafter during which he may be employed by the Company), access to
confidential information of the Company and its affiliates, including without
limitation, information and knowledge pertaining to products and services
offered, ideas, plans, trade secrets, proprietary information, advertising,
distribution and sales methods and systems, sales and profit figures, customer
and client lists, and relationships between the Company and its affiliates and
customers, clients, suppliers and others who have business dealings with the
Company and its affiliates ("Confidential Information"). Employee acknowledges
that such Confidential Information is a valuable and unique asset and covenants
that he will not, either during or at any time after the Term, disclose any such
Confidential Information to any person for any reason whatsoever (except as his
duties described herein may require) without the prior written authorization of
the Board of Directors of the Company, unless such information is in the public
domain through no fault of Employee or except as may be required by law.
(b) Employee will not disclose the terms of his employment or the contents
of this Agreement to any person for any reason whatsoever (except as his duties
described herein may require) without the prior written authorization of the
Board of Directors of the Company, unless such information is in the public
domain through no fault of Employee or except as may be required by law.
5. Non-Competition:
(a) During the Term and for a Twenty-four (24) month period following the
date the employment of Employee by the Company or any of its affiliates has
ended (whether or not such employment is pursuant to this Agreement), Employee
will not, unless acting pursuant hereto or with the prior written consent of the
Board of Directors of the Company, directly or indirectly, own, manage, operate,
control, finance or participate in the ownership, management, operation, control
or financing of, or be connected as an officer, director, partner, principal or
otherwise
Cirilium Holdings, Inc. EEA 5
with any business or enterprise engaged within any portion of the United States
in the internet telephony business or in any other business in which the Company
was engaged at the date of termination of Employee's employment by the Company
or at any time for one year after termination of employment with the Company. It
is recognized by Employee that the business of the Company and Employee's
connection therewith is or will be involved in internet site and internet
telephony activity throughout the United States, and that more limited
geographical limitations on this non-competition covenant and the non-
solicitation covenant set forth in Section 6 hereof are therefore not
appropriate.
(b) The foregoing restrictions shall not be construed to prohibit the
ownership by Employee of not more than five percent (5%) of any class of
securities of any corporation which is engaged in any of the foregoing
businesses, provided that such ownership represents a passive investment and
that neither Employee nor any group of persons including Employee in any way,
either directly or indirectly, manages or exercises control of any such
corporation, guarantees any of its financial obligations, otherwise takes any
part in its business, other than exercising his rights as a security owner, or
seeks to do any of the foregoing.
(c) In the event that Employee is terminated Without Cause by the Company
pursuant to Section 8.4 and Employee desires to be employed by a company (the
"Prospective Employer") in violation of the covenants set forth in Section 5(a)
above, Employee may request a waiver of Section 5(a) above and such waiver shall
be granted by the Company unless the Prospective Employer is a Direct Competitor
of the Company in any of the current geographic markets in whichh the Company is
engaged.
6. No Solicitation:
During the Term and for a one year period following the date employment of
Employee by the Company or any of its affiliates has ended (whether or not such
employment is pursuant to the Agreement), Employee will not, either directly or
indirectly, (i) call on or solicit any person, firm, corporation or other entity
who or which at the time of such termination was, or within two years prior
thereto had been, a customer of the Company or any of their respective
affiliates with respect to the activities prohibited by Section 6 hereof or (ii)
solicit the employment of any person who was employed by the Company or any of
Its affiliates on a full or part-time basis at any time during the course
Cirilium Holdings, Inc. EEA 6
of Employee's employment, unless such person prior to such solicitation of
employment (A) was involuntarily discharged by the Company or such affiliate, or
(B) voluntarily terminated his/her relationship with the Company or such
affiliate.
7. Equitable Relief:
(a) Employee acknowledges that the restrictions contained in Sections 3, 4,
5 and 6 hereof are reasonable and that the Company would not have entered into
this Agreement in the absence of such restrictions, and that any violation of
any provision of those Sections will result in irreparable injury to the
Company.
(b) EMPLOYEE FURTHER REPRESENTS AND ACKNOWLEDGES THAT (i) HE HAS BEEN
ADVISED BY THE COMPANY TO CONSULT HIS OWN LEGAL COUNSEL IN RESPECT OF THIS
AGREEMENT, (ii) THAT HE HAS HAD FULL OPPORTUNITY, PRIOR TO EXECUTION OF THIS
AGREEMENT, TO REVIEW THROUGHLY THIS AGREEMENT WITH HIS COUNSEL, AND (iii) HE HAS
READ AND FULLY UNDERSTANDS THE TERMS AND PROVISIONS OF THIS AGREEMENT.
(c) Employee agrees that the Company shall be entitle to preliminary and
permanent injunctive relief, without the necessity of providing actual damages,
as well as an equitable accounting of all earnings, profits and other benefits
arising from any violation of Sections 3, 4, 5 or 6 hereof, which rights shall
be cumulative and in addition to any other rights or remedies to which the
Company may be entitled. In the event that any of the provisions of Sections 5,
or 6 hereof should ever be adjudicated to exceed the time, geographic, product
or service, or other limitations permitted by applicable law in any
jurisdiction, then such provisions shall be deemed reformed in such jurisdiction
to the maximum time, geographic, product or service, or other limitations
permitted by applicable law.
(d) Employee irrevocably and unconditionally (i) agrees that any suit,
action or other legal proceeding arising out of this Agreement, including
without limitation, any action commenced by the Company for preliminary or
permanent injunctive relief or other equitable relief, must be brought in the
United States District Court for the Southern District of Florida, or if such
court does not have jurisdiction or will not accept jurisdiction, in any court
of general jurisdiction in Palm
Cirilium Holdings, Inc. EEA 7
Beach County (ii) consents to the non-exclusive jurisdiction of any such court
in any such suit, action or proceeding, and (iii) waives any objection which
Employee may have to the laying of venue of any such suit, action or proceeding
in any such court. Employee also irrevocably and unconditionally consents to the
service of any process, pleadings, notices or other papers in a manner permitted
by the notice provisions of Section 12 hereof.
8. Termination:
This Agreement shall terminate prior to the expiration of the Term set
forth in Section 1.4 above upon the occurrence of any one of the following
events:
8.1 Disability.
In the event that Employee is unable fully to perform his essential
duties and responsibilities hereunder to the full extent required by the
Board of Directors of the Company by reason of illness, injury or
incapacity for one hundred and twenty consecutive days, during which time
he shall continue to be compensated as provided in Section 1.4 hereof (less
any payments due Employee under disability benefit programs, including
Social Security disability, worker's compensation hereunder; provided,
however, that Employee will be entitled to receive the payments prescribed
under any disability benefit plan which may be in effect for employees of
the Company and in which he participated. Employee agrees, in the event of
any dispute under this Section 8.1, to submit to a physical examination by
a licensed physician selected by the Board of Directors of the Company.
8.2 Death.
In the event that Employee dies during the Term, the Company shall pay
to his executors, legal representatives or administrators any amounts due
and owing to the date of death to Employee as part of the salary set forth
in Section 1.4 hereof, and thereafter the Company shall have no further
liability or obligation hereunder to his executors, legal representatives,
administrators, heirs or assigns or any other person claiming under or
through it; provided, however, that Employee's estate or designated
beneficiaries shall be entitled to receive the payments prescribed for such
Cirilium Holdings, Inc. EEA 8
recipients under any death benefit plan which may be in effect for
employees of the Company and in which Employee participated.
8.3 Cause.
Nothing in this Agreement shall be construed to prevent its
termination by the Company at any time for "cause." For purposes of this
Agreement, "cause" shall mean and be limited to Employee's:
(a) Commission of any act of fraud, misappropriation or personal
dishonesty relating to or involving the Company in any material way;
(b) Gross negligence in the performanc of his duties or in any way
relating to the obligations and duties, which he owes the Company;
(c) Violation of any express direction of the Company or any material
violation of any rule, regulation, policy or plan established by the
Company from time to time regarding the conduct of its Employees and/or its
business, if such violation is not remedied by Employee within thirty (30)
days of receiving notice of such violation from the Company;
(d) Demonstrably willful and deliberat violation of any obligation
owed by Employee to the Company;
(e) Material disclosure or use of Confidential Information, other than
as required in the performance of Employee's duties under this Agreement;
(f) Conviction of a crime constituting a felony or any other crime
involving moral turpitude or criminal indictment for a crime involving
moral turpitude in which the substantial weight of credible evidence
indicates that Employee has committed such a crime.
Cirilium Holdings, Inc. EEA 9
In the event of termination for cause under section 8.3(a) or (f) of
this Section 8.3, Employee shall be suspended pending an independent
investigation by persons retained by the Company.
In the event of a termination for cause, the Company shall have no
obligation to make any further payments or to provide any further benefits
or compensation hereunder to Employee for any period subsequent to the date
of such termination, except that Employee will receive Employee's Base
Compensation, as well as bonus or commission payment(s) for which Employee
is eligible for as of the date of termination.
8.4 Without Cause by the Company.
The Company may terminate this Agreement upon not less than thirty
(30) days' written notice to Employee at and for the Company's sole
convenience and in its sole discretion and without specifying any cause as
set forth in Section 8.3 hereof. In such event, and contingent upon (i)
receipt by the Company of a valid and fully effective release (in form and
substance satisfactory to the Company) of all claims under the Age
Discrimination and Employment Act, 29 U.S.C. ss. 621 et. seq (ii) the
resignation of Employee from all positions of any nature, which Employee
may then have held with the Company and any of its affiliates, Employee
shall continue to receive Base Compensation for the following three (3)
month period.
9. Survival:
Notwithstanding the termination of this Agreement by the Company by reason
of Employee's disability under Section 8.1, for cause under Section 8.3, or
without cause under Section 8.4, his obligations under Sections 3, 4, 5 and 6
hereof shall survive and remain in full force and effect for the periods therein
provided, and the provisions for equitable relief against Employee in Section 8
hereof shall continue in force, along with the provisions of Sections 10 through
18 hereof.
10. Governing Law:
This Agreement shall be governed by and interpreted under the laws of the
State of Florida without giving effect to any conflict of laws provisions.
Cirilium Holdings, Inc. EEA 10
11. Litigation Expenses:
In the event of a lawsuit by either party to enforce the provisions of this
Agreement each Party must pay their costs and expenses.
12. Notices:
All notices and other communications required or permitted hereunder or
necessary or convenient in connection herewith shall be in writing and shall be
deemed to have been given when hand delivered or mailed by registered or
certified mail, as follows (provided that notice of change of address shall be
deemed given only when received):
If to the Company:
000 X. Xxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
If to Employee:
or to such other names or addresses as to the Company or Employee, as the case
may be, shall designate by notice to each other person entitled to receive
notices in the manner specified in this Section.
13. Entire Agreement: Contents of Agreement:
(a) This Agreement supersedes any and all other agreements, either oral or
written, between the parties with respect to the employment of Employee by the
Company for the purposes set forth in Section 1.2, and contains all of the
covenants and agreement between the parties with respect to such employment
whatsoever. Each party to this Agreement acknowledges that no representation,
inducements, promises or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not embodied herein,
and that no other agreement, statement, or promise not contained in this
agreement shall be valid or binding. Any modification of
Cirilium Holdings, Inc. EEA 11
this Agreement will be effective only if it is in writing and signed by both
parties to this Agreement.
(b) Employee acknowledges that from time to time, the Company may
establish, maintain and distribute employee manuals or handbooks or personnel
policy manuals, and officers or other representatives of the Company may make
written or oral statements relating to personnel policies and procedures. Such
manuals, handbooks and statements are intended only for general guidance. No
policies, procedures or statements of any nature by or on behalf of the Company
(whether written or oral and whether or not contained in any employee manual or
handbook or personnel policy manual), and no acts or practices of any nature,
shall be construed to modify this Agreement or to create express or implied
obligations of any nature to Employee.
(c) Words used herein, regardless of the number and gender specifically
used, shall be deemed and construed to include any other number, singular or
plural, and any other gender, masculine, feminine or neuter, as the context
indicates is appropriate.
14. Assignment:
All of the terms and provisions of this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective heirs, executors,
administrators, legal representatives, successors and assigns of the parties
hereto, except that the duties and responsibilities of Employee hereunder are of
a personal nature and shall not be assignable or delegatable in whole or in part
by Employee.
15. Severability:
If any provision of this Agreement or application thereof to anyone or
under any circumstances is adjudicated to be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect any other
provision or application and shall not invalidate or render unenforceable such
provision or application in any other jurisdiction.
Cirilium Holdings, Inc. EEA 12
16. Remedies Cumulative: No Waiver:
No remedy conferred upon the Company or the Employee by this Agreement is
intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to any remedy given hereunder or
now or hereafter existing at law or in equity. No delay or omission by the
Company or employee in exercising any right, remedy or power hereunder or
existing at law or in equity shall be construed as a waiver thereof, and any
such right, remedy or power may be exercised by the Company or the employee from
time to time and as often as may be deemed expedient or necessary by the Company
or the employee at its sole discretion.
17. Indemnification:
17.1 Third-Party Proceedings. The Company shall indemnify Employee if
Employee is or was a party or is threatened to be made a party to any
threatened, pending, or completed action or proceedings, whether civil,
criminal, administrative, or investigative (other than an action by or in
the right of the Company) by reason of the fact that Employee is or was a
director, officer, employee, or agent of the Company or an affiliate, by
reason of any action or inaction on the part of Employee while a director,
officer, employee, or agent or by reason of the fact that Employee is or
was serving at the request of the Company as a director, officer, employee,
or agent of another corporation, partnership, joint venture, trust, or
other enterprise, against expenses (including reasonable attorneys fees),
judgments, fines, and amounts paid in settlement (if such settlement is
approved in advance by the Company, which approval shall not be
unreasonably withheld) actually and reasonably incurred by Employee in
connection with such action or proceeding unless the Company shall
establish that (a) Employee did not act in good faith and in a manner
Employee reasonably believed to be in the best interests of the Company
and, with respect to any criminal action or proceeding, had reasonable
cause to believe Employee's conduct was unlawful; (b) Employee's actions
amounted to gross negligence; or (c) Employee's actions were performed with
knowledge and intent to harm the Company. The termination of any action or
proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption (i) that Employee did not act in good faith and in a manner
which Employee reasonably believed to be in the best interests of the
Company; or (ii) with respect to any
Cirilium Holdings, Inc. EEA 13
criminal action or proceeding, that Employee had reasonable cause to
believe that Employee's conduct was unlawful.
17.2 Proceedings by or in the Right of the Company.
The Company shall indemnify Employee if Employe was or is a party or
is threatened to be made a party to any threatened, pending, or completed
action or proceeding by or in the right of the Company or any affiliate of
the Company to procure a judgment in its favor by reason of the fact that
Employee is or was a director, officer, employee, or agent of the Company,
or any affiliate of the Company, by reason of any action or inaction on the
part of Employee while a director, officer, employee, or agent or by reason
of the fact that Employee is or was serving at the request of the Company
as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against expenses
(including reasonable attorney's fees) and, to the fullest extent permitted
by law, amounts paid in settlement of such action or proceeding unless the
Company shall establish any of the following concerning the action:
a. That Employee did not act in good faith; b. Employee acted in a
manner Employee could not have reasonably believed to be in the best
interests of the Company and its Members; c. The Employee actions were
intentional and with knowledge that such actions would result in the harm
complained of; d. Employee's actions amount to gross negligence; or e.
Employee's actions were outside the scope of his employment.
No indemnification shall be made in respect of any claim, issue or
matter as to which Employee shall have been adjudged to be liable to the
Company in the performance of Employee's duty to the Company or any
affiliate of the Company unless and only to the extent that the court in
which such action or proceeding is or was pending shall determine upon
application that, in view of all the circumstances of the case, Employee is
fairly and reasonably entitled to indemnity for expenses or amounts paid in
settlement and then only to the extent that the court shall determine.
Cirilium Holdings, Inc. EEA 14
17.3 Procedure.
Any indemnification provided for in this Agreement shall be made no
later than forty-five (45) days after the resolution (by judgment,
settlement, dismissal, or otherwise) of the claim to which indemnification
is sought. If a claim under this Agreement, under any statute, or under any
provision of the Company's Articles of Incorporation or bylaws providing
for indemnification, is not paid in full by the Company within such period,
Employee may, but need not, at any time thereafter bring an action against
the Company to recover the unpaid amount of the claim and, subject to
Section 17 of this Agreement, Employee shall also be entitled to be paid
for the expenses (including reasonable attorneys' fees) of bringing such
action. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in connection with any
action or proceeding in advance of its final disposition) that Employee has
not met the standards of conduct which make it permissible under applicable
law for the Company to indemnify Employee for the amount claimed, but the
burden of proving such defense shall be on the Company, and Employee shall
be entitled to receive interim payments of expenses pursuant to this
Agreement unless and until such defense may be finally adjudicated by court
order or judgment from which no further right appeal exists. It is the
parties' intention that if the Company contest Employee's right to
indemnification, the question of Employee's right to indemnification shall
be for the court to decide, and neither the failure of the Company
(including its Board of Directors, any committee or subgroup of the Board
of Directors, independent legal counsel, or its Members) to have made a
determination that indemnification of Employee is proper in the
circumstances because Employee has met the applicable standard of conduct
required by applicable law, nor an actual determination by the Company
(including its Board of Directors, any committee or subgroup of the Board
of Directors, independent legal counsel, or its Members) that Employee has
not met such applicable standard of conduct, shall create a presumption
that Employee has or has not met the applicable standard of conduct.
Cirilium Holdings, Inc. EEA 15
17.4 Notice to Insurers.
If, at the time of the receip of a notice of a claim pursuant to this
Agreement, the Company has directors' and officers' liability insurance in
effect, the Company shall give prompt notice of the commencement of such
proceeding to the insurers in accordance with the procedures set forth in
the respective policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the Employee,
all amounts payable as a result of such proceeding in accordance with the
terms of such policies.
17.5 Relationship to Other Sources.
Employee shall not be required to exercise any rights against any
other parties (for example, under any insurance policy purchased by the
Company, Employee, or any other person or entity) before Employee, or
Agreement. However, to the extent the Company actually indemnifies Employee
or advances expenses, the Company shall be entitled to enforce any such
rights, which Employee may have against third parties. Employee shall
assist the Company in enforcing those rights if the Company pays Employee's
reasonable costs and expenses of doing so.
17.6 Selection of Counsel.
In the event the Company shall be obligated under this Agreement to
pay the expenses of any proceeding against Employee, the Company, if
appropriate, shall be entitled to assume the defense of such proceeding,
with counsel approved by Employee, which approval shall not be unreasonably
withheld, upon the delivery to Employee of written notice of its election
to do so. After delivery of such notice, approval of such counsel by
Employee and the retention of such counsel by the Company, the Company will
not be liable to Employee under this Agreement for any fees of counsel
subsequently incurred by Employee with respect to the same proceeding,
provided that (i) Employee shall have the right to employ counsel in any
such proceeding at Employee's expense; and (ii) if (A) the employment of
counsel by Employee has been previously authorized by the Company (B)
Employee shall have reasonably concluded that there may be a conflict of
interest between the Company and Employee in the conduct
Cirilium Holdings, Inc. EEA 16
of any such defense, or (C) the Company shall not, in fact, have employed
counsel to assume the defense of such proceeding, then the reasonable fees
and expenses of Employee's counsel shall be at the expense of the Company.
17.7 Additional Rights
a. Scope. Notwithstanding any other provision of this Agreement, the
Company hereby agrees to indemnify the Employee to the fullest extent
permitted by law, notwithstanding that such indemnification is not
specifically authorized or mandated by the other provisions of this
Agreement, the Company's Articles of Incorporation, the Company's Bylaws,
or by statute. In the event of any change, after the date of this
Agreement, in any applicable law, statute, or rule which expands the right
of a corporate entity to indemnify a member of its or an affiliate's board
of directors or an officer, such changes shall be, ipso facto, within the
purview of Employee's rights and the Company's obligations under this
Agreement. In the event of any change in any applicable law, statute, or
rule which narrows the right of a corporate entity to indemnify a member of
its or an affiliate's Board of Directors or an officer, such changes, to
the extent not otherwise required by such law, statute, or rule to be
applied to this Agreement shall have no effect on this Agreement or the
parties rights and obligations hereunder.
b. Nonexclusivity. The indemnification provided by this Agreement
shall not be deemed exclusive of any rights to which Employee my be
entitled under the Company's Articles of Incorporation, its Bylaws, any
agreement, any vote of Members or disinterested directors, the Corporation
Law of the State of Florida, or otherwise, both as to action in Employee's
official capacity and as to action or inaction in another capacity while
holding such office. The indemnification provided under this Agreement
shall continue as to Employee for any action taken or not taken while
serving in an indemnified capacity even though Employee may have ceased to
serve in such capacity at the time of any action or other cover proceeding
is commenced.
c. Partial Indemnification. Employee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion
of the expenses judgments,
Cirilium Holdings, Inc. EEA 17
fines, or penalties actually or reasonably incurred in the investigation,
defense, appeal, or settlement of any civil or criminal action or
proceeding, but not, however, for the total amount thereof, the Company
shall nevertheless indemnify Employee for the portion of such expenses,
judgments, fines, or penalties to which Employee is entitled.
d. Acknowledgment. Both the Company and Employee acknowledge that in
certain instances, state or federal law or applicable public policy may
prohibit the Company from indemnifying its directors and officers under
this Agreement or otherwise. Employee understands and acknowledges that the
Company has undertaken or may be required in the future to undertake with
the Securities and Exchange Commission to submit the question of
indemnification to a court in certain circumstances for a determination of
the Company's right under public policy to indemnify Employee.
18. Miscellaneous
All section headings are for convenience only. This Agreement may be
executed in several counterparts, each of which is an original. It shall not be
necessary in making proof of this Agreement or any counterpart hereof to produce
or account for any of the other counterparts.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement as of the date first above written.
Cirilium Holdings, Inc. Employee
/s/ Xxxxxx Xxxxxx /s/ Xxx Xxxx
------------------------ ------------------------
Xxxxxx Xxxxxx Xxx Xxxx
Chairman of the Board of Directors Chief Executive Officer
Cirilium Holdings, Inc. EEA 18
