EMPLOYMENT AGREEMENT FOR SENIOR EXECUTIVE
THIS EMPLOYMENT AGREEMENT FOR SENIOR EXECUTIVE is made and entered into
as of July 1, 1999, between XXXX-XXX.XXX, INC., a Florida corporation (the
"Company"), and XXXXX XXXXXXX, whose residence address is 000 Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0 ("Executive").
WHEREAS, the Company desires to employ Executive, and Executive desires
to serve as an officer and employee of the Company, on the terms and conditions
hereinafter set forth; and
WHEREAS, the parties intend that this Employment Agreement for Senior
Executive supersedes any prior understandings of the parties pertaining to the
Executive's employment by the Company.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Executive do
hereby mutually covenant and agree as follows:
1. Employment. The Company agrees to employ Executive to perform the
duties described in this Agreement, and Executive accepts such employment on the
terms and subject to the conditions stated in this Agreement.
2. Position and Responsibilities. During the period of his employment
under this Agreement, Executive agrees to serve as President and Chief Executive
Officer of the Company. The Executive shall report to the Board of Directors of
the Company. The Executive agrees to perform services not inconsistent with his
position and involving duties of comparable scope, dignity and importance as
shall from time to time be assigned to him by the Board of Directors of the
Company. During the term of his employment, Executive also agrees to serve, as
determined by the Board of Directors, as an officer and/or director of any
subsidiary or affiliate of the Company, however, Executive shall not receive
additional compensation for such services.
3. Term and Duties.
(a) Term of Employment. The period of Executive's employment
under this Agreement shall be deemed to have begun on the date written
above and shall continue, unless sooner terminated, for a period of
three (3) years (the "Initial Term"). Subject to the provisions for
termination set forth in this Agreement, beginning on the date of
expiration of the Initial Term, Executive's employment under this
Agreement shall automatically be renewed for two (2) additional two (2)
year terms, unless either party gives written notice of intention not
to renew not less
1
than ninety (90) days prior to the expiration of the applicable Initial
Term or renewal term. If the Company elects not to renew other than
"for cause" (as hereinafter defined), the Executive shall receive a
lump sum payment equivalent to the full amount of compensation received
by Executive in the immediately preceding year of the term hereof. (The
Initial Term and both additional two (2) year terms shall be referred
to collectively as the "Term".) If Executive's employment under this
Agreement is terminated for any reason by either party, the effective
date of that termination shall be referred to herein as the
"Termination Date."
(b) Duties. During the period of his employment under this
Agreement and except for illness, vacation periods, and reasonable
leaves of absence, Executive shall devote substantially all of his
business time, attention, skill and efforts to the faithful performance
of his duties under this Agreement.
4. Compensation. For all services rendered by Executive in any capacity
during his employment under this Agreement, including, without limitation,
services as an executive, officer or member of any committee of the Company or
any subsidiary or affiliate of the Company, the Company shall compensate
Executive as follows:
(a) Basic Compensation. The Company shall pay to Executive
basic salary compensation at the rate of not less than One Hundred
Fifty Thousand U.S. Dollars ($150,000) per year ("Basic Compensation")
during the Term of this Agreement. Executive's Basic Compensation shall
be paid in equal weekly, semi-monthly or biweekly installments
throughout the Term of this Agreement, in accordance with its standard
payroll practice.
(b) Bonuses. The Company's Board of Directors, or a duly
established committee thereof, shall meet annually and, in its
discretion, authorize payment of an annual bonus to the Executive based
upon their evaluation of factors including revenues generated, net
income achieved and such other financial and operational factors as the
Board of Directors deems appropriate. To the extent authorized by the
Board of Directors, such bonus may be computed based upon a percentage
of pre-tax income achieved by the Company, as reflected on the
Company's audited financial statements.
(c) Confirmation of Option Grant. The Company hereby confirms
(i) its prior grant to the Executive of options to purchase two million
(2,000,000) shares of the Company's common stock, exercisable at $.40
per share (in excess of 110% of fair market value on the dat of grant)
for a period of ten (10) years, and (ii) that the grant of such options
was intended as an inducement to enter into this Agreement.
2
(d) Award of SARs. The company hereby grants the Executive an
annual Stock Appreciation Right ("SAR"), pursuant to which, on (i)
February 15, 2000, the Executive shall be entitled to receive a sum of
money in an amount equal to four hundred thousand (400,000) times the
difference between the "fair market value" of the Company's common
stock at the close of trading on June 30, 1999 and February 1, 2000,
(ii) on February 15, 2001, the Executive shall be entitled to receive a
sum of money in an amount equal to six hundred thousand (600,000) times
the difference between the "fair market value" of the Company's common
stock at the close of trading on February 1, 2000 and February 1, 2001,
and (iii) on February 15, 2002, the Executive shall be entitled to
receive a sum of money in an amount equal to six hundred thousand
(600,000) times the difference between the "fair market value" of the
Company's common stock at the close of trading on February 1, 2001 and
February 1, 2002. For purposes of this provision, "fair market value"
shall be determined in the manner contemplated by Section 13(c), below.
(e) Grant of Common Stock. Upon execution of this Agreement,
and as an inducement to the Executive to enter into this Agreement, the
Company shall issue to Executive five million (5,000,000) shares of the
Company's common stock. The shares issuable pursuant to this provision
shall not be registered under the Securities Act of 1933, as amended,
except to the extent that the Board of Directors determines to file a
registration statement registering such shares.
(f) Vacations. During the term of his employment hereunder,
Executive shall be entitled to twenty-eight (28) business days,
excluding Company holidays, of paid vacation during each year of
employment. Vacations shall be scheduled at such times as are mutually
acceptable to the Company and Executive.
(g) Stock Options. The Company shall establish and maintain
one or more stock option plans in which Executive shall be entitled to
participate. The terms and conditions of such plans shall be
established and administered by the Board of Directors of the Company.
5. Reimbursement of Expenses. The Company shall pay or reimburse Execu
tive for all reasonable travel and other expenses incurred by Executive in
performing his obligations under this Agreement. In addition, the Company shall
pay to Executive an automobile allowance of a minimum of Seven Hundred Dollars
($700) per month to reimburse Executive for the use of his personal automobile
in discharging his obligations under this Agreement.
6. Participation in Benefit Plans. The payments provided for in
Paragraph 7 of this Agreement are in addition to any benefits to which Executive
may be, or may become, entitled under any group hospitalization, health, dental
care, or sick leave plan, life or other insurance or death benefit plan, travel
or accident insurance, auto allowance
3
or auto lease plan, or executive contingent compensation plan, including,
without limitation, capital accumulation and termination pay programs,
restricted or stock purchase plan, stock option plan, retirement income or
pension plan, or other present or future group employee benefit plan or program
of the Company for which key executives are or shall become eligible, and
Executive shall be eligible to receive during the period of his employment under
this Agreement all benefits and emoluments for which key executives are eligible
under every such plan or program in accordance with and to the extent
permissible under the general terms and provisions of these plans or programs.
7. Benefits Relating to Disability or Death.
(a) Disability Benefits. In the event of the disability (as
defined in this Agreement) of Executive, the Company shall, subject to
the provisions of Paragraph 14 hereof, continue to pay Basic
Compensation to Executive during the period of his disability to the
extent that disability benefits payable to Executive under
Company-sponsored insurance policies are less than Executive's Basic
Compensation. As used in this Agreement, the term "disability" shall
mean the substantial inability of Executive to perform his duties, as
defined by the Company disability insurance plan applicable to
Executive and as determined by an independent physician selected with
the approval of the Company and Executive. If the parties are unable to
agree on such independent physician, each party shall select a
physician and those physicians shall select a third independent
physician to determine whether Executive is disabled.
(b) Services During Disability. During the period in which
Executive is entitled to receive payments under Paragraph 7(a) above,
to the extent that he is physically and mentally able to do so, he
shall furnish information and assistance to the Company and comply with
the provisions of Paragraph 14 hereof, and, in addition, upon
reasonable request in writing on behalf of the Board of Directors or an
executive officer designated by such Board from time to time, he shall
make himself available to the Company to undertake reasonable
assignments consistent with the dignity, importance and scope of his
prior position and his physical and mental health.
(c) Reimbursement for Life Insurance. The Company shall
reimburse Executive for the cost of a term life insurance policy in a
face amount not to exceed One Million Dollars ($1,000,000), provided
that the cost of such policy does not exceed the standard charge for
insurance of this type. Executive shall be the owner of such policy and
shall have the right to select the beneficiary of such policy.
8. Relocation Expenses. If Executive's principal place of employment is
relocated outside of British Columbia, and if Executive consents in writing to
such relocation notwithstanding his rights under Paragraph 9(d) of this
Agreement, the Company
4
shall reimburse Executive for all usual relocation expenses incurred by
Executive in moving himself and his family from British Columbia to the new
location of his principal place of employment, including, without limitation,
moving expenses and rental payments for temporary living quarters in the area of
relocation for a period not to exceed six (6) months.
9. Termination by Executive With Good Reason.
(a) Executive shall have the right to resign from the Company
by terminating his employment for "Good Reason" upon ninety (90) days
written notice to the Company. For purposes of this Agreement, "Good
Reason" shall mean:
(i) the occurrence of any one or more of the
following events:
(A) the Company's failure to elect or
reelect, or to appoint or reappoint,
Executive to offices or positions
with the Company carrying authority,
responsibilities, dignity and
importance and involving duties of a
scope comparable to those of
Executive's most significant offices
or positions held at any time during
the term of this Agreement;
(B) any material change by the Company
in the Executive's function, duties
or responsibilities which would
cause Executive's position with the
Company to become of less dignity,
responsibility, importance or scope
than that associated with
Executive's most significant
position with the Company at any
time during the term of this
Agreement;
(C) Executive's Basic Compensation is
reduced by the Company; or
(D) relocation of the Company's
corporate headquarters or
Executive's principal place of
employment to a place located
outside of British Columbia;
provided that required travel on the
Company's business shall not be
deemed a relocation so long as
Executive is not required to be
outside of British Columbia for more
than forty percent (40%) of his
working days during any consecutive
six (6) month period.
(ii) Subject to the provisions of subparagraph
9(c) hereof, a "Change in Control" of the
Company (as defined below);
5
(iii) the failure by the Company to obtain the
assumption of this Agreement by any
successor or assign of the Company; or
(iv) any material breach of this Agreement by the
Company, which breach is not cured within
ten (10) days after written notice of any
such material Breach is delivered to the
Company.
(b) For purposes of this Agreement, the term "Change in
Control" of the Company shall be deemed to have occurred if:
(i) any "person" (as such term is used in
Section 13(d) and 14(d)(2) of the Exchange
Act) shall become the beneficial owner
(within the meaning of Rule 13d-3
promulgated pursuant to the Exchange Act, or
any successor provision thereto), directly
or indirectly, through a transaction or
series of transactions not approved in
advance of the commencement of such
transaction or series of transactions by the
Company's Board of Directors, of securities
of the Company representing twenty-five
percent (25%) or more of the combined voting
power of the Company's then outstanding
securities ordinarily (and apart from rights
accruing under special circumstances) having
the right to vote at an election of
directors; provided, however, that, for
purposes of this Subparagraph 9(b)(i),
"person" shall exclude the Company, its
subsidiaries, any person acquiring such
securities directly from the Company, any
employee benefit plan sponsored by the
Company or any stockholder owning
twenty-five percent (25%) or more of the
combined voting power of the Company's
outstanding securities as of the date of
this Agreement; or
(ii) individuals who, as of the date hereof,
constitute the Board of Directors of the
Company (the "Incumbent Board") cease for
any reason to constitute at least eighty
percent (80%) of the Board of Directors of
the Company, provided (A) that any person
becoming a member of the Board of Directors
of the Company subsequent to the date hereof
whose election, or nomination for election
by the Company's stockholders, was approved
by a vote of at least eighty percent (80%)
of the members then comprising the Incumbent
Board (other than an election or nomination
of an individual whose initial assumption of
office is in connection with an actual or
threatened election contest relating to the
election of the Directors of the Company, as
such terms are used in Rule 14a-11 of
6
Regulation 14A promulgated under the
Exchange Act, or any successor provision
thereto) shall be, for purposes of this
Agreement, considered as though such person
were a member of the Incumbent Board, or (B)
that the members of the Board of Directors
of the Company who are nominated in the
definitive proxy statement furnished in
connection with the solicitation of proxies
on behalf of the Board of Directors of the
Company shall be, for purposes of this
Agreement, considered as members of the
Incumbent Board; or
(iii) approval by the stockholders of the Company
and consummation of (A) a reorganization,
merger, consolidation, or sale or other
disposition of all or substantially all of
the assets of the Company, in each case,
with or to a corporation or other person or
entity of which persons who were the
stockholders of the Company immediately
prior to such reorganization, merger,
consolidation or sale do not, immediately
thereafter, own more than sixty percent
(60%) of the combined voting power of the
outstanding voting securities entitled to
vote generally in the election of directors
of the reorganized, merged, consolidated or
purchasing corporation or other person or
entity and eighty percent (80%) of the
members of the Board of Directors of which
corporation or other person or entity were
not members of the Incumbent Board at the
time of the execution of the initial
agreement providing for such reorganization,
merger or consolidation, or (B) a
liquidation or dissolution of the Company.
(c) Upon the occurrence of any event constituting "Good
Reason" under Paragraph 9(b) of this Agreement, Executive shall have
the right to elect to terminate his employment under this Agreement by
resignation on not less than ninety (90) days prior written notice. If
Executive terminates his employment pursuant to the provisions of this
Paragraph 9, he shall be entitled to certain benefits described in
Paragraph 13 of this Agreement, subject to his compliance with the
provisions of Paragraph 13 of this Agreement.
10. Termination by the Company for Cause. The Company shall have the
right to terminate Executive's employment for "Cause," which shall be defined as
any of the following: (a) Executive's gross and willful misconduct injurious to
the Company; (b) Executive's commission of a felony in the course of employment;
or (c) Executive's breach of any material provision of this Agreement, which
breach is not cured within thirty (30) business days after written notice
thereof is delivered to Executive. Notwithstanding the foregoing, no termination
of Executive's employment by the Company under this
7
Section 10 shall take place prior to the Company providing Executive with at
least twenty (20) days prior written notice of the Company's intent to so
terminate Executive's employment, and granting to Executive the right to address
the entire Board of Directors concerning the subject matter of Executive's
termination. If Executive's employment is terminated for Cause, the Company will
have no further liability or obligation to Executive except for amounts earned
or accrued prior to termination. Employee acknowledges that, if his employment
is terminated for Cause, he shall be subject to the restrictions described in
Paragraph 12.
11. Termination Upon Executive's Death. The Company's obligations
hereun der shall terminate immediately upon Executive's death, with no further
liability or obligation to Executive (except for amounts earned or accrued prior
to termination and rights under applicable stock option and other benefit
plans).
12. Restrictive Covenants.
(a) During the period commencing on the date of this Agreement
and ending twelve (12) months after the Termination Date, Executive
shall not, directly or indirectly, induce or attempt to induce any of
the Company's employees to leave the employment of the Company;
provided, that the foregoing shall not apply to the exercise of
Executive's supervisory and disciplinary duties during the period of
Executive's employment.
(b) During the period commencing on the date of this Agreement
and ending on the Termination Date, the Executive shall not, except as
a passive investor in publicly-held companies and except for
investments held at the date hereof, own or control any interest in, or
act as a director, officer or employee of, or consultant to, any firm
or corporation doing business in North America which is (i) engaged in
a venture or business substantially similar to that of the Company, or
(ii) in direct competition with or known to be a competitor of the
Company.
(c) During the period commencing on the Terminate Date and
ending twelve (12) months after the Termination Date, Executive shall
not, except as a passive investor in publicly-held companies and except
for investments held as of the date hereof, own or control any interest
in, or act as a director, officer or employee of, or consultant to, any
firm or corporation doing business in North America engaged in direct
competition with or known to be a competitor of the Company.
(d) The provisions of subparagraphs (a), (b) and (c) of this
Section 12 shall not be enforceable to the extent that the Company is
not in material breach of its obligations under this Agreement.
8
(e) Executive agrees to regard and preserve as confidential
all proprietary information, whether Executive has such information in
Executive's memory or in writing or other physical form. Executive will
not, without authority from the Company to do so, use for Executive's
own benefit or purposes, or disclose to others, either during the term
of his employment or thereafter, except as required by the conditions
of Executive's employment, any proprietary information. Executive
recognizes that all such documents and objects, whether developed by
Executive or by someone else, are the exclusive property of the
Company. For purposes of this Agreement, "proprietary information"
shall mean any information relating to the business of the Company, or
any entity in which the Company has a controlling interest, that has
not previously been publicly released by duly authorized
representatives of the Company and shall include (but shall not be
limited to) information encompassed in all drawings, designs, plans,
proposals, marketing and sales plans, financial information, menus,
costs, pricing information, customer information, and all methods,
concepts or ideas in or reasonably related to the business of the
Company or any entity in which the Company has a controlling interest.
Notwithstanding the foregoing, the obligation to keep proprietary
information confidential shall not apply to (a) any information which
(i) any party can establish was already in its possession prior to
disclosure thereof by the party furnishing the information; or (ii) was
then generally known to the public; or (iii) became known to the public
through no fault of such party; or (b) disclosures in accordance with
an order of a court of competent jurisdiction.
(f) Executive acknowledges that the injury to the Company
resulting from violation of any of the covenants contained in this
Agreement will be of such character that it cannot be adequately
compensated by money damages, and accordingly the Company may, in
addition to pursuing its other remedies, obtain from any court having
jurisdiction of the matter an injunction or other order restraining any
such violation. Executive further acknowledges and agrees that, if the
covenants contained in this Agreement are deemed to be unenforceable
and Executive fails to comply with any such covenants, the Company has
no obligation to provide any compensation or other benefits described
in Paragraph 13 hereof.
13. Post-Termination Compensation and Other Benefits.
(a) If Executive terminates his employment pursuant to
Paragraph 9 hereof, or the Company elects not to renew Executive's
employment without Cause, the Company shall pay to Executive as
severance pay an amount equal to the Executive's full compensation
earned in the year immediately preceding such termination or
non-renewal. In addition, the Company shall pay to Executive all
compensation under this Agreement that has been earned but unpaid as of
the
9
Termination Date. All such amounts shall be paid in one lump sum,
within twenty (20) days following the Termination Date.
(b) If Executive terminates his employment for Good Reason or
the Company elects not to renew Executive's employment without Cause,
the Company and the Executive shall have the following rights and
obligations regarding "supple mentary severance pay" as follows:
(i) Upon written notice to Executive within
thirty (30) days after the Termination Date,
the Company may elect to pay to Executive
supplementary severance pay equal to his
Basic Compensation payable on a monthly
basis during the Non-Competition Period,
provided that Executive agrees to fully
comply with the provisions of Paragraph 12
throughout the Non-Competition Period. In
such event, the Company shall continue to
pay the premiums for Executive's health and
disability insurance coverage during such
Non-Competition Period as if Executive had
continued in his employment by the Company.
(ii) Upon written notice to Executive within
thirty (30) days after the Termination Date,
the Company shall have the right to forego
payment of the amounts described in
Paragraph 13(b)(i), in which event Executive
shall not be bound by the provisions of
Paragraphs 12(b) or 12(c). If the Company
fails to provide the written notices
described in Paragraph 13(b)(i) and in this
Paragraph 13(b)(ii), the Company shall be
deemed to have elected to forego payment
pursuant to the terms of this Paragraph
13(b)(ii).
(c) Unless the Company terminates Executive's employment or
elects not to renew the Term hereof, for cause, Executive shall have
the option to sell to the Company all of the common stock of the
Company owned of record by Executive or the Executive and/or his spouse
and any shares held by Executive and/or his spouse in "street name" or
in trust as of the Termination Date. Said right is referred to as the
"Termination Put". The price at which such stock shall be purchased by
the Company shall be the fair market value of the Company's common
stock as of the Termination Date. For purposes of this Agreement the
"fair market value" of the Company's common stock shall be the weighted
average of the last sale prices of the Company's common stock during
the ten (10) trading days immediately preceding the Termination Date as
quoted on the Automated Quotation System of the National Association of
Securities Dealers ("NASDAQ") or, in the absence of quotations on
NASDAQ, or any other recognized automated quotation system on
10
which the Company's common stock is quoted. Any exercise of the
Termination Put by Executive shall be by written notice within thirty
(30) days following the Termination Date. The Company shall make
payment in full in U.S. dollars to Executive for any stock surrendered
to the Company pursuant to the notice exercising the Termination Put
from the Executive. Each notice exercising the Termination Put shall be
accompanied by the certificates representing such shares of stock which
shall be endorsed to the order of the Company, signature guaranteed.
Executive shall represent and warrant that said shares are, and shall
transfer the same, free and clear of all liens, claims and
encumbrances. The Company's obligations under this Paragraph 13(c)
shall be subject to its obligations to comply with:
(i) applicable federal and state securities
laws and regulations;
(ii) loan or financing agreements with banks or
other lenders to which the Company is a
party or by which the Company is bound; and
(iii) applicable state corporate law. If the
Company is prohibited from purchasing such
stock because payment would constitute a
violation of state corporate law, the
Company shall make payment only to the
extent permitted by law; provided, that the
Company shall remain liable for the unpaid
balance and shall pay same when legally
permitted.
(d) If Executive terminates his employment for Good Reason or
the Company terminates Executive's employment without Cause, and at the
Termi nation Date Executive holds stock options which are not then
vested or exercisable, the Company shall pay to the Executive, as
additional severance pay or liquidated damages or both, an amount equal
to the excess above the option price under each such option of the fair
market value of the shares subject to such option. Such amount shall be
paid in one lump sum, within twenty (20) days following the Termination
Date. "Fair market value" as used in this Paragraph 13(d) shall be
determined as described in Paragraph 13(c).
(e) As used in Paragraph 13(b) hereof, the term "Basic
Compensation" refers to Executive's Basic Compensation prior to the
date of a reduction in Basic Compensation which would permit Executive
to terminate his employment for Good Reason under Paragraph 9(c).
(f) Notwithstanding anything else to the contrary contained in
this Agreement, the total amounts payable to Executive pursuant to this
Paragraph 13 shall not exceed 2.99 multiplied times the present value
of his "Base Amount" (as
11
defined in Section 280G of the Internal Revenue Code of 1986, as
amended, and the regulations adopted under that section).
14. Executive Warranties. The Executive represents and warrants that
neither the execution and delivery of this Agreement nor the performance of his
duties hereunder violates the provisions of any other agreement to which he is a
party or by which he is bound.
15. Key Man Insurance. The Company shall have the right, in its sole
discre tion, to purchase "key man" insurance on the life of Executive. The
Company shall be the owner and beneficiary of such policy. If Company elects to
purchase such policy, Executive agrees to take physical examinations and to
supply accurate and complete information as may be requested by the insurer.
16. Entire Agreement; Termination of Prior Understandings. This
Agreement constitutes the entire understanding of the parties with respect to
the subject matter hereof, and is intended to supercede and replace all prior
understandings of the parties with respect to the employment of the Executive by
the Company and/or any of its subsidiaries. Except as otherwise set forth
herein, any prior agreements of the parties with respect to the employment of
the Executive by the Company and/or any of its subsidiaries is hereby terminated
and canceled.
17. Miscellaneous.
(a) The Company's obligation to make the payments provided for
in this Agreement and otherwise to perform its obligations under this
Agreement shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company
may have against the Executive or others. In no event shall the
Executive be obligated to seek other employment or take any other
action by way of mitigation of the amounts payable to the Executive
under any of the provisions of this Agreement and such amounts shall
not be reduced whether or not the Executive obtains other employment.
The Company agrees to pay promptly as incurred, to the full extent
permitted by law, all legal fees and expenses which the Executive may
reasonably incur as a result of any contest (regardless of the outcome
thereof) by the Company, the Executive or others of the validity or
enforceability of, or liability under, any provision of this Agreement
or any guarantee of performance of such provisions (including as a
result of any contest by the Executive about the amount of any payment
pursuant to this Agreement), plus in each case interest on any delayed
payment at the applicable Federal rate provided for in Section 1274(d)
of the Code, or any successor provision thereto, for an obligation with
a term equal to the length of such delay.
12
(b) If there shall be any dispute between the Company and the
Executive (i) in the event of any termination of the Executive's
employment by the Company, whether such termination was for Cause, or
(ii) in the event of any termination of employment by the Executive,
whether Good Reason existed, then, until there is a final,
non-appealable judgment by a court of competent jurisdiction declaring
that such termination was for Cause or that the determination by the
Executive of the existence of Good Reason was not made in good faith,
the Company shall pay all amounts, and provide all benefits, to the
Executive and/or the Executive's family or other beneficiaries, as the
case may be, that the Company would be required to pay or provide
hereunder as though such termination were by the Company without Cause
or by the Executive with Good Reason; provided, however, that the
Company shall not be required to pay any disputed amounts pursuant to
this paragraph except upon receipt of an undertaking by or on behalf of
the Executive to repay, without interest or penalty, all such amounts
to which the Executive is ultimately adjudged by such court not be
entitled, as soon as practicable after the effectiveness of a final
court order with respect to the payment of such disputed amount.
(c) As used herein, the term "Company" shall mean and include
the Company and any subsidiary thereof and any successor or assign
unless the con text indicates otherwise. This Agreement and all rights
hereunder are personal to the Executive and shall not be assignable by
him and any purported assignment shall be null and void and shall not
be binding on the Company; provided, however, that nothing in this
Paragraph 20 shall preclude (i) Executive from designating a
beneficiary to receive any benefit payable hereunder upon his death, or
(ii) the executors, administrators, and other legal representatives of
Executive or his estate from assigning any rights hereunder to the
person or persons entitled thereunto. This Agreement shall be binding
upon, and shall inure to the benefit of, Executive, the Company and
their respective permitted successors and assigns.
(d) Except as required by law, no right to receive payments
under this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation or to execution, attachment, levy, or similar process or
assignment by operation of law, and any attempt, voluntary or
involuntary, to effect such action shall be null, void, and of no
effect.
(e) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto. No term or
condition of this Agreement shall be deemed to have been waived, nor
shall there be any estoppel against the enforcement of any provision of
this Agreement, except by written instrument of the party charged with
such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and
13
each such waiver shall operate only as to the specific term or
condition waived and shall not constitute a waiver of such term or
condition for the future or as to any act other than specifically
waived.
(f) Unless specifically stated to the contrary herein, all
references to "days" and "months" shall mean calendar days and calendar
months, respectively.
18. Severability. If for any reason any provision of this Agreement is
held invalid, such invalidity shall not affect any other provision of this
Agreement not held so invalid, and each such other provision shall to the full
extent consistent with law continue in full force and effect. If any provision
of this Agreement shall be held invalid in part, such invalidity shall in no way
affect the rest of such provision not held so invalid, and the rest of such
provision, together with all other provisions of this Agreement, shall to the
full extent consistent with law continue in full force and effect. If this
Agreement is held invalid or cannot be enforced, then to the full extent
permitted by law, any prior agreement between the Company (or any predecessor
thereto) and Executive shall be deemed reinstated as if this Agreement had not
been executed.
19. Notices. All notices, requests, demands and other communications
which are required or may be given pursuant to this Agreement shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by certified mail, postage prepaid, as follows:
(a) If to the Company, to it at:
Xxxx-Xxx.xxx, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Attention: Chairman of the Board
(b) If to Executive, to him at:
Xxxxx Xxxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
or such other address as any party hereto shall have designated by notice in
writing to the other parties hereto. All such notices, requests, demands and
communications shall be deemed to have been given on the date of delivery, or,
if given by certified mail, on the second business day after mailing.
14
20. Headings. The headings of paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any provision of this Agreement.
21. Governing Law. This Agreement has been executed and delivered in
the State of Florida, and its validity, interpretation, performance, and
enforcement shall be governed by the laws of Florida, without regard to its
conflicts of laws provisions.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officers, and Executive has signed this
Agreement, all as of the day and year first above written.
XXXX-XXX.XXX, INC.
a Florida corporation
By:/s/ Xxxxx Xxxxxxx
--------------------
Name:/s/ Xxxxx Xxxxxxx
----------------------
Its:President
EXECUTIVE:
/s/ Xxxxx Xxxxxxx
-----------------
Xxxxx Xxxxxxx
15
