CHANGE OF CONTROL AND TERMINATION AGREEMENT
THIS AGREEMENT, made effective as of _______________, 2001, by and between
__________________________ (the "Executive") and xXXXXXXXXXX.XXX, INC. (the
"Company").
W I T N E S S E T H
WHEREAS, the Executive and the Company desire to establish certain terms,
provisions and conditions pursuant to which (i) the Executive will be
compensated in the event that a merger, combination, consolidation, sale or
similar business transaction of Company occurs or a change in the composition of
the board of directors and (ii) the Executive will be compensated in the event
that the Executive's employment with the Company is terminated without cause.
NOW, THEREFORE, in consideration of the premises and the mutual promises
hereinafter set forth, the parties hereby agree as follows:
1. Termination.
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(a) For purposes of this Agreement, the term "cause" shall mean:
(i) the Executive's conviction of a felony and all appeals with
respect thereto have been extinguished or abandoned by the
Executive;
(ii) the Executive's conviction of misappropriating assets or
(iii)otherwise defrauding the Company or any of its subsidiaries
or affiliates.
(b) If during the Term of Executive's Employment Agreement the
Executive's employment is terminated by the Company other than for cause
after a Change of Control (as defined below), the Executive shall be
entitled to receive a lump sum payment equal to _______% of Executive's
last twelve (12) months base salary in addition to any other compensation
that may be due and owing to the Executive pursuant to his Employment
Agreement. In addition, all stock options issued to Executive shall
immediately vest and be exercisable in full at any time over the remaining
term of the stock options.
2. Change of Control.
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(a) For purposes of this Agreement, "Change of Control" means:
(1) The closing of any merger, combination, consolidation or
similar business transaction involving the Company in which the
holders of Common Stock immediately prior to such closing are not the
holders of a majority of the ordinary voting securities of the
surviving person in such transaction (a "Business Combination"); or
(2) The closing of any sale by the Company of all or
substantially all of its assets to an acquiring person in which the
holders of Common Stock immediately prior to such closing are not the
holders of a majority of the ordinary voting securities of the
acquiring person (an "Asset Sale"); or
(3) The closing of any sale by the holders of Common Stock of an
amount of Common Stock that equals or exceeds a majority of the shares
of Common Stock immediately prior to such closing to a person in which
the holders of the Common Stock immediately prior to such closing are
not the holders of a majority of the ordinary voting securities (a
"Stock Sales"); or
(4) A change in the composition of the Board of Directors such
that the current members of the Board of Directors are no longer the
majority in number of the Board of Directors.
(b) In the event of a Change of Control and Executive is terminated
for any reason other than for "cause", Executive shall have the right to
payment pursuant to Paragraph 1(b). In the event of payment to Executive
pursuant to Paragraph 1(b), Executive shall be entitled to a lump sum
payment.
3. Severability. If any provision of this Agreement otherwise is deemed
to be invalid or unenforceable or is prohibited by the laws of the state or
jurisdiction where it is to be performed, this Agreement shall be considered
divisible as to such provision and such provision shall be inoperative in such
state or jurisdiction and shall not be part of the consideration moving from
either of the parties to the other. The remaining provisions of this Agreement
shall be valid and binding and/or like effect as though such provision were not
included.
4. Notice.
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Notices given pursuant to the provisions of this Agreement
shall be sent by certified mail, postage prepaid, or by overnight courier, or
telecopier to the following addresses:
To the Company: xXxxxxxxxxx.xxx, Inc.
2708 Alternate 00 Xxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
To the Executive: __________________________
Either party may, from time to time, designate any other
address to which any such notice to it or him shall be sent. Any such notice
shall be deemed to have been delivered upon the earlier of actual receipt or
four days after deposit in the mail, if by certified mail.
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5. Miscellaneous.
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(a) Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the internal, substantive laws of the State
of Florida without giving effect to the conflict of laws rules thereof.
(b) Waiver/Amendment. The waiver by any party to this Agreement of a
breach of any provision hereof by any other party shall not be construed as
a waiver of any subsequent breach by any party. No provision of this
Agreement may be terminated, amended, supplemented, waived or modified
other than by an instrument in writing signed by the party against whom the
enforcement of the termination, amendment, supplement, waiver or
modification is sought.
(c) Attorney's Fees. In the event any action is commenced, the
prevailing party shall be entitled to a reasonable attorneys fee, costs and
expenses.
(d) Entire Agreement. This Agreement represents the entire agreement
between the parties with respect to the subject matter of this Agreement.
This Agreement supersedes any prior agreements and shall control in the
event of any inconsistent provisions.
(e) Counterparts. This Agreement may be executed in counterparts, all
of which shall constitute one and the same instrument.
WITNESSES: "EXECUTIVE"
Print Name: Print Name:
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Print Name:
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"COMPANY"
xXXXXXXXXXX.XXX, INC.,
a Nevada corporation
By:
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Print Name: Print Name:
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Title:
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Print Name:
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