EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of March 15 ,
1999 by Dynamic Health Products, Inc., a Florida corporation (the "Employer"),
and Xx. Xxxxx X. Xxxxxxxx (the "Executive").
BACKGROUND
The Employer and the Executive have entered into Employment Agreement
dated September 15, 1995. This Agreement supersedes that Employment Agreement in
its entirety.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms have the
meanings specified or referred to in this Section 1.
"AGREEMENT" -- this Employment Agreement, as amended from time to time.
"BASIC COMPENSATION" -- Salary and Benefits.
"BENEFITS" -- as defined in Section 3.1(b).
"BOARD OF DIRECTORS" -- the board of directors of the Employer.
"CONFIDENTIAL INFORMATION" -- any and all:
(a) trade secrets concerning the business and affairs of
the Employer, product specifications, data, know-how, formulae, compositions,
processes, designs, sketches, photographs, graphs, drawings, samples, inventions
and ideas, past, current, and planned research and development, current and
planned manufacturing or distribution methods and processes, customer lists,
current and anticipated customer requirements, price lists, market studies,
business plans, computer software and programs (including object code and source
code), computer software and database technologies, systems, structures, and
architectures (and related formulae, compositions, processes, improvements,
devices, know-how, inventions, discoveries, concepts, ideas, designs, methods
and information, and any other information, however documented, that is a trade
secret within the meaning of Chapter 688, Florida Statutes;
(b) information concerning the business and affairs of
the Employer (which includes historical financial statements, financial
projections and budgets, historical and
projected sales, capital spending budgets and plans, the names and backgrounds
of key personnel, personnel training and techniques and materials, however
documented;
(c) notes, analysis, compilations, studies, summaries,
and other material prepared by or for the Employer containing or based, in whole
or in part, on any information included in the foregoing, and
(d) any and all of the foregoing as it relates to Dynamic
Health Products, Inc., a Florida corporation and any of its affiliates.
"DISABILITY" -- as defined in Section 6.2.
"EFFECTIVE DATE" -- the date stated in the first paragraph of the
Agreement.
"EMPLOYEE INVENTION" -- any idea, invention, technique, modification,
process, or improvement (whether patentable or not), any industrial design
(whether registerable or not), any mask work, however fixed or encoded, that is
suitable to be fixed, embedded or programmed in a semiconductor product (whether
recordable or not), and any work of authorship (whether or not copyright
protection may be obtained for it) created, conceived, or developed by the
Executive, either solely or in conjunction with others, during the Employment
Period, or a period that includes a portion of the Employment Period, that
relates in any way to, or is useful in any manner in, the business then being
conducted or proposed to be conducted by the Employer, and any such item created
by the Executive, either solely or in conjunction with others, following
termination of the Executive's employment with the Employer, that is based upon
or uses Confidential Information.
"EMPLOYMENT PERIOD" -- the term of the Executive's employment under
this Agreement.
"FISCAL YEAR" -- the Employer's fiscal year, as it exists on the
effective date or is changed from time to time.
"FOR CAUSE" -- as defined in Section 6.3.
"FOR GOOD REASON" -- as defined in Section 6.4.
"INCENTIVE COMPENSATION" -- as defined in Section 3.2.
"PERSON" -- any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, or governmental body.
"POST-EMPLOYMENT PERIOD" -- as defined in Section 8.2.
"PROPRIETARY ITEMS" -- as defined in Section 7.2(a)(iv).
2
"SALARY" -- as defined in Section 3.1(a).
2. EMPLOYMENT TERMS AND DUTIES
2.1 EMPLOYMENT. The Employer hereby employs the
Executive, and the Executive hereby accepts employment by the Employer, upon the
terms and conditions set forth in this Agreement.
2.2 TERM. Subject to the provisions of Section 6, the
term of the Executive's employment under this Agreement will be three years,
beginning on the Effective Date and ending on the third anniversary of the
Effective Date. This Agreement will be renewed automatically thereafter for
successive periods of one year, unless not less than 30 days prior to the end of
the initial three year period or prior to the end of any one-year renewal
period, one of the parties sends written notice to the other party of its intent
to terminate this Agreement at the end of such period.
2.3 DUTIES. The Executive will have such duties as are
assigned or delegated to the Executive by the Board of Directors and will
initially serve as the President of the Employer. The Executive will devote his
entire business time, attention, skill, and energy exclusively to the business
of the Employer, will use his best efforts to promote the success of the
Employer's business, and will cooperate fully with the Board of Directors in the
advancement of the best interests of the Employer.
3. COMPENSATION
3.1 BASIC COMPENSATION.
(a) SALARY. The Executive will be paid an annual
salary of $90,000, (the "Salary"), which will be payable in equal periodic
installments according to the Employer's customary payroll practices, but no
less frequently than every two weeks. The Executive's base salary shall increase
annually by an amount to be determined in the sole discretion of the Board of
Directors based on the Board's review of the Executive's performance and the
financial performance of the Employer.
(b) BENEFITS. The Executive will, during the
Employment Period, be permitted to participate in such pension, profit sharing,
bonus, life insurance, hospitalization, major medical, and other employee
benefit plans of the Employer that may be in effect from time to time, to the
extent the Executive is eligible under the terms of those plans (collectively,
the "Benefits").
3.2 INCENTIVE COMPENSATION. As additional compensation
(the "Incentive Compensation") for the services to be rendered by the Executive
pursuant to this Agreement, the Employer will pay the Executive an annual bonus
as determined in the sole discretion of the
3
Board of Directors based on the Board's evaluation of the Executive's
performance and the financial performance of the Employer.
3.3 STOCK OPTIONS. The Executive shall be eligible for
the grant of stock options in accordance with the provisions of the Company's
1999 Stock Option Plan, as determined by the Administrator of such Plan.
4. FACILITIES AND EXPENSES
The Employer will furnish the Executive office space, equipment,
supplies, and such other facilities and personnel as the Employer deems
necessary or appropriate for the performance of the Executive's duties under
this Agreement. The Employer will pay on behalf of the Executive (or reimburse
the Executive for) reasonable expenses incurred by the Executive at the request
of, or on behalf of, the Employer in the performance of the Executive's duties
pursuant to this Agreement, and in accordance with the Employer's employment
policies. The Executive must file expense reports with respect to such expenses
in accordance with the Employer's policies.
5. VACATIONS AND HOLIDAYS
The Executive will be entitled to three weeks paid vacation each Fiscal
Year in accordance with the vacation policies of the Employer in effect for its
executive officers from time to time. Vacation must be taken by the Executive at
such time or times as approved by the Chairman of the Board or Chief Executive
Officer. The Executive will also be entitled to the paid holidays set forth in
the Employer's policies. Vacation days and holidays during any Fiscal Year that
are not used by the Executive during such Fiscal Year may not be used in any
subsequent Fiscal Year.
6. TERMINATION
6.1 EVENTS OF TERMINATION. The Employment Period, the
Executive's Basic Compensation and Incentive Compensation, and any and all other
rights of the Executive under this Agreement or otherwise as an employee of the
Employer will terminate (except as otherwise provided in this Section 6):
(a) upon the death of the Executive;
(b) upon the disability of the Executive (as
defined in Section 6.2) immediately upon notice from either party to the other;
(c) for cause (as defined in Section 6.3),
immediately upon notice from the Employer to the Executive, or at such later
time as such notice may specify; or
(d) for good reason (as defined in Section 6.4)
upon not less than thirty days' prior notice from the Executive to the Employer.
4
6.2 DEFINITION OF DISABILITY. For purposes of Section
6.1, the Executive will be deemed to have a "disability" if, for physical or
mental reasons, the Executive is unable to perform the Executive's duties under
this Agreement for 30 consecutive days, or 90 days during any twelve month
period, as determined in accordance with this Section 6.2. The disability of the
Executive will be determined by a medical doctor selected by written agreement
of the Employer and the Executive upon the request of either party by notice to
the other. If the Employer and the Executive cannot agree on the selection of a
medical doctor, each of them will select a medical doctor and the two medical
doctors will select a third medical doctor who will determine whether the
Executive has a disability. The determination of the medical doctor selected
under this Section 6.2 will be binding on both parties. The Executive must
submit to a reasonable number of examinations by the medical doctor making the
determination of disability under this Section 6.2, and the Executive hereby
authorizes the disclosure and release to the Employer of such determination and
all supporting medical records. If the Executive is not legally competent, the
Executive's legal guardian or duly authorized attorney-in-fact will act in the
Executive's stead, under this Section 6.2, for the purposes of submitting the
Executive to the examinations, and providing the authorization of disclosure,
required under this Section 6.2.
6.3 DEFINITION OF "FOR CAUSE." For purposes of Section
6.1, the phrase "for cause" means: (a) the Executive's material breach of this
Agreement (b) the Executive's failure to adhere to any written Employer policy
if the Executive has been given a reasonable opportunity to comply with such
policy or cure his failure to comply (which reasonable opportunity must be
granted during the ten-day period preceding termination of this Agreement); (c)
the appropriation (or attempted appropriation) of a material business
opportunity of the Employer, including attempting to secure or securing any
personal profit in connection with any transaction entered into on behalf of the
Employer; (d) the misappropriation (or attempted misappropriation) of any of the
Employer's funds or property; or (e) the conviction of, the indictment for (or
its procedural equivalent), or the entering of a guilty plea or plea of no
contest with respect to, a felony, the equivalent thereof, or any other crime
with respect to which imprisonment is a possible punishment.
6.4 DEFINITION OF "FOR GOOD REASON." For purposes of
Section 6.1, the phrase "for good reason" means the Employer's material breach
of this Agreement.
6.5 TERMINATION PAY. Effective upon the termination of
this Agreement, the Employer will be obligated to pay the Executive (or, in the
event of his death, his designated beneficiary as defined below) only such
compensation as is provided in this Section 6.5, and in lieu of all other
amounts and in settlement and complete release of all claims the Executive may
have against the Employer. For purposes of this Section 6.5, the Executive's
designated beneficiary will be such individual beneficiary or trust, located at
such address, as the Executive may designate by notice to the Employer from time
to time or, if the Executive fails to give notice to the Employer of such a
beneficiary, the Executive's estate. Notwithstanding the preceding sentence, the
Employer will have no duty, in any circumstances, to attempt to open an estate
on behalf of the Executive, to determine whether any beneficiary designated by
the Executive is alive or to ascertain the address of any such beneficiary, to
determine the existence
5
of any trust, to determine whether any person or entity purporting to act as the
Executive's personal representative (or the trustee of a trust established by
the Executive) is duly authorized to act in that capacity, or to locate or
attempt to locate any beneficiary, personal representative, or trustee.
(a) TERMINATION BY THE EXECUTIVE FOR GOOD
REASON. If the Executive terminates this Agreement for good reason, the Employer
will pay the Executive (i) the Executive's Salary for the remainder, if any, of
the calendar month in which such termination is effective and for three
consecutive calendar months thereafter, and (ii) that portion of the Executive's
Incentive Compensation (including the number of shares included in the option
provided for herein), if any, for the year during which the termination is
effective, prorated through the date of termination based on the number of days
in the year.
(b) TERMINATION BY THE EMPLOYER FOR CAUSE. If
the Employer terminates this Agreement for cause, the Executive will be entitled
to receive his Salary only through the date such termination is effective, but
will not be entitled to any Incentive Compensation for the year during which
such termination occurs or any subsequent year.
(c) TERMINATION UPON DISABILITY. If this
Agreement is terminated by either party as a result of the Executive's
disability, as determined under Section 6.2, the Employer will pay the Executive
his Salary through the remainder of the calendar month during which such
termination is effective and for the lesser of (i) six consecutive months
thereafter, or (ii) the period until disability insurance benefits commence
under the disability insurance coverage furnished by the Employer to the
Executive.
(d) TERMINATION UPON DEATH. If this Agreement is
terminated because of the Executive's death, the Executive will be entitled to
receive his Salary through the end of the calendar month in which his death
occurs, and that part of the Executive's Incentive Compensation (including the
number of shares included in the option provided for herein), if any, for the
year during which his death occurs, prorated through the end of the month during
which his death occurs.
(e) BENEFITS. The Executive's accrual of, or
participation in plans providing for, the Benefits will cease at the effective
date of the termination of this Agreement, and the Executive will be entitled to
accrued Benefits pursuant to such plans only as provided in such plans. The
Executive will not receive, as part of his termination pay pursuant to this
Section 6, any payment or other compensation for any vacation, holiday, sick
leave, or other leave unused on the date the notice of termination is given
under this Agreement.
7. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
7.1 ACKNOWLEDGMENTS BY THE EXECUTIVE. The Executive
acknowledges that (a) during the Employment Period and as a part of his
employment, the Executive will be afforded access to Confidential Information;
(b) public disclosure of such Confidential Information could have an adverse
effect on the Employer and its business; (c) because the
6
Executive possesses substantial technical expertise and skill with respect to
the Employer's business, the Employer desires to obtain exclusive ownership of
each Employee Invention, and the Employer will be at a substantial competitive
disadvantage if it fails to acquire exclusive ownership of each Employee
Invention; (d) the Buyer has required that the Executive make the covenants in
this Section 7 as a condition to its purchase of the Assets; and (e) the
provisions of this Section 7 are reasonable and necessary to prevent the
improper use or disclosure of Confidential Information and to provide the
Employer with exclusive ownership of all Employee Inventions.
7.2 AGREEMENTS OF THE EXECUTIVE. In consideration of the
compensation and benefits to be paid or provided to the Executive by the
Employer under this Agreement, the Executive covenants as follows:
(a) CONFIDENTIALITY.
(i) During and following the Employment
Period, the Executive will hold in confidence the Confidential Information and
will not disclose it to any person except with the specific prior written
consent of the Employer or except as otherwise expressly permitted by the terms
of this Agreement.
(ii) Any trade secrets of the Employer
will be entitled to all of the protections and benefits under Chapter 688,
Florida Statutes and any other applicable law. If any information that the
Employer deems to be a trade secret is found by a court of competent
jurisdiction not to be a trade secret for purposes of this Agreement, such
information will, nevertheless, be considered Confidential Information for
purposes of this Agreement. The Executive hereby waives any requirement that the
Employer submit proof of the economic value of any trade secret or post a bond
or other security.
(iii) None of the foregoing obligations
and restrictions applies to any part of the Confidential Information that the
Executive demonstrates was or became generally available to the public other
than as a result of a disclosure by the Executive.
(iv) The Executive will not remove from
the Employer's premises (except to the extent such removal is for purposes of
the performance of the Executive's duties at home or while traveling, or except
as otherwise specifically authorized by the Employer) any document, record,
notebook, plan, model, component, device, or computer software or code, whether
embodied in a disk or in any other form (collectively, the "Proprietary Items").
The Executive recognizes that, as between the Employer and the Executive, all of
the Proprietary Items, whether or not developed by the Executive, are the
exclusive property of the Employer. Upon termination of this Agreement by either
party, or upon the request of the Employer during the Employment Period, the
Executive will return to the Employer all of the Proprietary Items in the
Executive's possession or subject to the Executive's control, and the Executive
shall not retain any copies, abstracts, sketches, or other physical embodiment
of any of the Proprietary Items.
7
(b) EMPLOYEE INVENTIONS. Each Employee Invention
will belong exclusively to the Employer. The Executive acknowledges that all of
the Executive's writing, works of authorship, and other Employee Inventions are
works made for hire and the property of the Employer, including any copyrights,
patents, or other intellectual property rights pertaining thereto. If it is
determined that any such works are not works made for hire, the Executive hereby
assigns to the Employer all of the Executive's right, title, and interest,
including all rights of copyright, patent, and other intellectual property
rights, to or in such Employee Inventions. The Executive covenants that he will
promptly:
(i) disclose to the Employer in writing
any Employee Invention;
(ii) assign to the Employer or to a
party designated by the Employer, at the Employer's request and without
additional compensation, all of the Executive's right to the Employee Invention
for the United States and all foreign jurisdictions;
(iii) execute and deliver to the Employer
such applications, assignments, and other documents as the Employer may request
in order to apply for and obtain patents or other registrations with respect to
any Employee Invention in the United States and any foreign jurisdictions;
(iv) sign all other papers necessary to
carry out the above obligations; and
(v) give testimony and render any other
assistance in support of the Employer's rights to any Employee Invention.
7.3 DISPUTES OR CONTROVERSIES. The Executive recognizes
that should a dispute or controversy arising from or relating to this Agreement
be submitted for adjudication to any court, arbitration panel, or other third
party, the preservation of the secrecy of Confidential Information may be
jeopardized. All pleadings, documents, testimony, and records relating to any
such adjudication will be maintained in secrecy and will be available for
inspection by the Employer, the Executive, and their respective attorneys and
experts, who will agree, in advance and in writing, to receive and maintain all
such information in secrecy, except as may be limited by them in writing.
8. NON-COMPETITION AND NON-INTERFERENCE
8.1 ACKNOWLEDGMENTS BY THE EXECUTIVE. The Executive
acknowledges that: (a) the services to be performed by him under this Agreement
are of a special, unique, unusual, extraordinary, and intellectual character;
(b) the Employer's business is national in scope and its products are marketed
throughout the United States; (c) the Employer competes with other businesses
that are or could be located in any part of the United States; (d) the Buyer has
required that the Executive make the covenants set forth in this Section 8 as a
condition to the Buyer's
8
purchase of the Assets; and (e) the provisions of this Section 8 are reasonable
and necessary to protect the Employer's business.
8.2 COVENANTS OF THE EXECUTIVE. In consideration of the
acknowledgments by the Executive, and in consideration of the compensation and
benefits to be paid or provided to the Executive by the Employer, the Executive
covenants that he will not, directly or indirectly:
(a) during the Employment Period, except in the
course of his employment hereunder, and during the Post-Employment Period,
engage or invest in, own, manage, operate, finance, control, or participate in
the ownership, management, operation, financing, or control of, be employed by,
associated with, or in any manner connected with, lend the Executive's name or
any similar name to, lend Executive's credit to or render services or advice to,
any business whose products or activities compete in whole or in part with the
products or activities of the Employer anywhere within the United States;
provided, however, that the Executive may purchase or otherwise acquire up to
(but not more than) one percent of any class of securities of any enterprise
(but without otherwise participating in the activities of such enterprise) if
such securities are listed on any national or regional securities exchange or
have been registered under Section 12(g) of the Securities Exchange Act of 1934;
(b) whether for the Executive's own account or
for the account of any other person, at any time during the Employment Period
and the Post-Employment Period, solicit business of the same or similar type
being carried on by the Employer, from any person known by the Executive to be a
customer of the Employer, whether or not the Executive had personal contact with
such person during and by reason of the Executive's employment with the
Employer;
(c) whether for the Executive's own account or
the account of any other person (i) at any time during the Employment Period and
the Post-Employment Period, solicit, employ, or otherwise engage as an employee,
independent contractor, or otherwise, any person who is or was an employee of
the Employer at any time during the Employment Period or in any manner induce or
attempt to induce any employee of the Employer to terminate his employment with
the Employer; or (ii) at any time during the Employment Period and for three
years thereafter, interfere with the Employer's relationship with any person,
including any person who at any time during the Employment Period was an
employee, contractor, supplier, or customer of the Employer; or
(d) at any time during or after the Employment
Period, disparage the Employer or any of its shareholders, directors, officers,
employees, or agents.
For purposes of this Section 8.2, the term "Post-Employment
Period" means the three year period beginning on the date of termination of the
Executive's employment with the Employer.
If any covenant in this Section 8.2 is held to be
unreasonable, arbitrary, or against public policy, such covenant will be
considered to be divisible with respect to scope, time, and
9
geographic area, and such lesser scope, time, or geographic area, or all of
them, as a court of competent jurisdiction may determine to be reasonable, not
arbitrary, and not against public policy, will be effective, binding, and
enforceable against the Executive.
The period of time applicable to any covenant in this Section
8.2 will be extended by the duration of any violation by the Executive of such
covenant.
The Executive will, while the covenant under this Section 8.2
is in effect, give notice to the Employer, within ten days after accepting any
other employment, of the identity of the Executive's employer. The Buyer or the
Employer may notify such employer that the Executive is bound by this Agreement
and, at the Employer's election, furnish such employer with a copy of this
Agreement or relevant portions thereof.
9. GENERAL PROVISIONS
9.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY. The
Executive acknowledges that the injury that would be suffered by the Employer as
a result of a breach of the provisions of this Agreement (including any
provision of Sections 7 and 8) would be irreparable and that an award of
monetary damages to the Employer for such a breach would be an inadequate
remedy. Consequently, the Employer will have the right, in addition to any other
rights it may have, to obtain injunctive relief to restrain any breach or
threatened breach or otherwise to specifically enforce any provision of this
Agreement, and the Employer will not be obligated to post bond or other security
in seeking such relief. Without limiting the Employer's rights under this
Section 9 or any other remedies of the Employer, if the Executive breaches any
of the provisions of Section 7 or 8, the Employer will have the right to cease
making any payments otherwise due to the Executive under this Agreement.
9.2 COVENANTS OF SECTIONS 7 AND 8 ARE ESSENTIAL AND
INDEPENDENT COVENANTS. The covenants by the Executive in Sections 7 and 8 are
essential elements of this Agreement, and without the Executive's agreement to
comply with such covenants, the Buyer would not have purchased the Assets and
the Employer would not have entered into this Agreement or employed or continued
the employment of the Executive. The Employer and the Executive have
independently consulted their respective counsel and have been advised in all
respects concerning the reasonableness and propriety of such covenants, with
specific regard to the nature of the business conducted by the Employer.
The Executive's covenants in Sections 7 and 8 are independent
covenants and the existence of any claim by the Executive against the Employer
under this Agreement, will not excuse the Executive's breach of any covenant in
Section 7 or 8.
If the Executive's employment hereunder expires or is
terminated, this Agreement will continue in full force and effect as is
necessary or appropriate to enforce the covenants and agreements of the
Executive in Sections 7 and 8.
10
9.3 REPRESENTATIONS AND WARRANTIES BY THE EXECUTIVE. The
Executive represents and warrants to the Employer that the execution and
delivery by the Executive of this Agreement do not, and the performance by the
Executive of the Executive's obligations hereunder will not, with or without the
giving of notice or the passage of time, or both: (a) violate any judgment,
writ, injunction, or order of any court, arbitrator, or governmental agency
applicable to the Executive; or (b) conflict with, result in the breach of any
provisions of or the termination of, or constitute a default under, any
agreement to which the Executive is a party or by which the Executive is or may
be bound.
9.4 OBLIGATIONS CONTINGENT ON PERFORMANCE. The
obligations of the Employer hereunder, including its obligation to pay the
compensation provided for herein, are contingent upon the Executive's
performance of the Executive's obligations hereunder.
9.5 WAIVER. The rights and remedies of the parties to
this Agreement are cumulative and not alternative. Neither the failure nor any
delay by either party in exercising any right, power, or privilege under this
Agreement will operate as a waiver of such right, power, or privilege, and no
single or partial exercise of any such right, power, or privilege will preclude
any other or further exercise of such right, power, or privilege or the exercise
of any other right, power, or privilege. To the maximum extent permitted by
applicable law, (a) no claim or right arising out of this Agreement can be
discharged by one party, in whole or in part, by a waiver or renunciation of the
claim or right unless in writing signed by the other party; (b) no waiver that
may be given by a party will be applicable except in the specific instance for
which it is given; and (c) no notice to or demand on one party will be deemed to
be a waiver of any obligation of such party or of the right of the party giving
such notice or demand to take further action without notice or demand as
provided in this Agreement.
9.6 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED. This
Agreement shall inure to the benefit of, and shall be binding upon, the parties
hereto and their respective successors, assigns, heirs, and legal
representatives, including any entity with which the Employer may merge or
consolidate or to which all or substantially all of its assets may be
transferred. The duties and covenants of the Executive under this Agreement,
being personal, may not be delegated.
9.7 NOTICES. All notices, consents, waivers, and other
communications under this Agreement must be in writing and will be deemed to
have been duly given when (a) delivered by hand (with written confirmation of
receipt), (b) sent by facsimile (with written confirmation of receipt), provided
that a copy is mailed by registered mail, return receipt requested, or (c) when
received by the addressee, if sent by a nation-ally recognized overnight
delivery service (receipt requested), in each case to the appropriate addresses
and facsimile numbers set forth below (or to such other addresses and facsimile
numbers as a party may designate by notice to the other parties):
11
If to Employer: Dynamic Health Products, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxx, XX 00000
Attention: Xxxxxxx X. XxXxxxx
Facsimile No.: (000) 000-0000
With a copy to: Johnson, Blakely, Pope,
Bokor, Xxxxxx & Xxxxx, P.A.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to the Executive: Xx. Xxxxx X. Xxxxxxxx
0000 Xxxxx Xxxxx Xxxx
Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
9.8 ENTIRE AGREEMENT; AMENDMENTS. This Agreement,
contains the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior agreements and understandings, oral or
written, between the parties hereto with respect to the subject matter hereof.
This Agreement may not be amended orally, but only by an agreement in writing
signed by the parties hereto.
9.9 GOVERNING LAW. This Agreement will be governed by the
laws of the State of Florida without regard to conflicts of laws principles.
9.10 JURISDICTION. Any action or proceeding seeking to
enforce any provision of, or based on any right arising out of, this Agreement
may be brought against either of the parties in the courts of the State of
Florida, County of Pinellas, or, if it has or can acquire jurisdiction, in the
United States District Court for the Middle District of Florida, and each of the
parties consents to the jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any objection to
venue laid therein. Process in any action or proceeding referred to in the
preceding sentence may be served on either party anywhere in the world.
9.11 SECTION HEADINGS, CONSTRUCTION. The headings of
Sections in this Agreement are provided for convenience only and will not affect
its construction or
12
interpretation. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Agreement unless otherwise specified.
All words used in this Agreement will be construed to be of such gender or
number as the circumstances require. Unless otherwise expressly provided, the
word "including" does not limit the preceding words or terms.
9.12 SEVERABILITY. If any provision of this Agreement is
held invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any provision
of this Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
9.13 COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which will be deemed to be an original copy of
this Agreement and all of which, when taken together, will be deemed to
constitute one and the same agreement.
9.14 WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY WAIVE
A JURY TRIAL IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date above first written above.
EMPLOYER: EXECUTIVE:
DYNAMIC HEALTH PRODUCTS, INC.
By: /s/ XXXXXXX XXXXXXX /s/ XX. XXXXX X. XXXXXXXX
-------------------------- -----------------------------------
As: CEO Xx. Xxxxx X. Xxxxxxxx
-------------------------
13
