EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is effective as of November
22, 2005, and is by and between Tropical Printing LLC, a Florida Corporation,
with its principal place of business in Sarasota, Florida, hereinafter
referred to as (the "Employer" or the "Corporation"), and Xxxxxx Xxxxx, an
individual, hereinafter referred to as (the "Employee").
ARTICLE 1.
TERM OF EMPLOYMENT
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1.1 Term. The Employer hereby employs the Employee and the Employee
hereby accepts employment with the Employer from November 22, 2005, until
November 21, 2007 ("the Initial Period"). Any acquisitions acquired and
merged into Tropical Printing LLC will subsequently cause the Term to restart
to the initial period of twenty-four months. Additional term periods may be
negotiated with the acquisitions.
1.2 Renewal. This Agreement may continue at the option of the
Employee for a successive three (3) year term ("Renewal Period.")
ARTICLE 2.
DUTIES OF EMPLOYEE
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2.1 General Duties. The Employee agrees to serve as Vice President of
Tropical Printing LLC (TP) and to perform diligently and to the best of his
abilities the duties and services pertaining to such office as set forth in
the Bylaws of TP that are currently in effect or as amended from time to time,
as well as such additional duties and services appropriate to such office as
the Board of Directors of TP (the "Board of Directors") may reasonably assign
to Employee from time to time. Any action undertaken on behalf of the Employer
shall be done prudently and in good faith in furtherance of the Employer's
business.
2.2 Change in Duties. The duties of the Employee may be changed from
time to time by the mutual consent of the Employer and the Employee without
resulting in a rescission of this Agreement provided that same shall not
result in a change of Employee's title from "Vice President" to a title with
less authority or otherwise constitute a demotion of Employee by Employer.
Notwithstanding any such change, the employment of the Employee shall be
construed as continuing under this Agreement as modified.
2.3 Devotion of Time to Employer's Business. The Employee shall to the
best of Employee's ability, devote his full time efforts as required to
competently perform his duties.
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ARTICLE 3.
COMPENSATION AND BENEFITS
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3.1 Compensation. During the term of this Agreement, the Employer
shall provide compensation to Employee in the following forms:
(a) Base Salary. Employee shall receive a base salary of one
thousand one-hundred dollars ($1,100) per week, which amount shall be subject
to annual review by the Employer's Board of Directors and/or the Compensation
Committee of the Employer's Corporation for possible increases, which increase
shall not be less than the previous twelve months increase in the Consumer
Price Increase for Sarasota County, Florida. The salary shall be earned on a
weekly basis and will be paid in arrears every week. In addition, in the
event of any acquisition merged into Tropical Printing LLC, the base salary
will be subject to review for possible increases.
(b) Bonus. Employee shall participate in, and receive an annual
bonus at the discretion of the Employer's Board of Directors and/or the
Employer's Compensation Committee, or pursuant to the Employer's Bonus Plan,
as instituted from time to time.
(1) For any strategic alliance, merger/acquisition or
divestiture entered into by Client as a result of the activities of Employee,
Employer shall pay Employee, one percent (1%) of the total value of the
transaction in MPWE common stock.
(c) Employee Benefit Plans. Employee shall be entitled to
participate in all employee benefit plans to be established by the Board of
Directors on the same terms and conditions as all other employees similarly
situated including without limitation any and all employees of Employer at the
senior executive level ("the Employee Level") level, including without
limitation reimbursement of reasonable moving expenses. Employee shall also be
issued options to acquire one million shares of the Employer's common stock.
The options shall be issued at the rate of 200,000 per year for the next five
years and shall be exercisable as determined by the closing price on the
anniversary dates hereof and shall vest and be exercisable upon attainment of
goals for the Employee which shall have been mutually agreed to at the
beginning of each of the five years.
3.2 Benefits. During the term of this Agreement, Employee shall
additionally receive the following benefits as incidences of his employment:
(a) Health and Other. Employee and, to the extent applicable,
Employee's family, dependents and beneficiaries, shall be allowed to
participate in all benefits, plans and programs, including improvements or
modifications of the same, which are now, or may hereafter be, available to
employees of the Employer generally and at the Employee level. Such benefits,
plans and programs may include, without limitation, a profit sharing plan, a
thrift plan, health and dental insurance or a healthcare plan at the Employee
Level, life insurance, disability insurance and/or a pension plan. The
Employer shall not, however, by reason of this paragraph be obligated to
institute, maintain, or refrain from changing, amending or discontinuing, any
such benefit plan or program of a discretionary nature, so long as such
changes are similarly applicable to employees of the Employer generally.
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(b) Business and Entertainment Expenses. Subject to the
Employer's standard policies and procedures with respect to expense
reimbursement as applied to its executive employees, at the Employee Level,
the Employer will reimburse Employee for, or pay on behalf of Employee,
reasonable expenses incurred by Employee for business related purposes,
including without limitation travel, accommodations, car rentals, dues and
fees to approved industry and professional organizations, and reasonable costs
of entertainment incurred in connection with business development. With
regard to such expenses, the Employee shall:
(i) Keep an account book in which the Employee shall
record at or near the time that each expenditure is made:
(1) amount of the expenditure;
(2) the time, place and designation of the type of
the entertainment and travel, or other expense, or the date and description of
any gift (gifts made to one individual are not to exceed a total of
twenty-five dollars ($25.00) in any taxable year;
(3) the business reason for the expenditure and the
nature of the business benefit derived or expected to be derived as a result
of the expenditure; and
(4) the names, occupations, addresses, and other
information concerning each person who was entertained or given a gift for
purposes of attempting sufficient to establish a business relationship to the
Employer;
(ii) Obtain documentary evidence (such as a receipt for
paid xxxx), which states sufficient information to establish the amount, date,
place and the essential character of the expenditure, for each expenditure:
(1) Twenty-five dollars ($25.00) or more (except
for transportation charges if not readily available); and
(2) Transportation and lodging while traveling away
from home. The foregoing account book and documentary evidence shall be
delivered to the Employer whenever requested by the Employer and shall
thereafter be retained by the Employee.
3.3 Payroll and Deduction for Taxes. Employee shall receive all
compensation pursuant to this Agreement in accordance with the Employer's
customary payroll practices with respect to time and manner of payment. The
Employer shall have the right to deduct from the compensation due to the
Employee hereunder any and all sums required for social security and
withholding taxes and for any other federal, state or local tax or charges
which may not be in effect or hereafter enacted or required as a charge on the
compensation of the Employee.
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ARTICLE 4.
PROPERTY RIGHTS OF THE PARTIES
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4.1 Trade Secrets. The Employee during the term of employment under
this Agreement will have access to and become acquainted with various trade
secrets, consisting of devices, secret inventions, customer lists, customer
requirements and compilations of information, records and specifications,
which are owned by the Employer and which are regularly used in the operation
of the business of the Employer. The Employee shall not disclose any of the
aforesaid trade secrets, directly or indirectly or use them in any way, either
during the Term of this Agreement or at any time hereafter, except in the
course of his employment. All files records, documents, drawings,
specifications, equipment, and similar items relating to the business of the
Employer, whether prepared by the Employee or otherwise coming into his
possession, shall remain the exclusive property of the Employer and shall not
be removed from the premises of the Employer without the prior written consent
of the Employer, except for use in the course of his employment..
4.2 Non Solicitation of Customers After Termination of Employment. The
Employee shall not within twelve months of the expiration or termination of
this agreement for whatever reason, either directly or indirectly:
(a) Make known to any person, firm or corporation the names or
addresses of any of the customers of the Employer or any other proprietary
Employer information pertaining to them; or
(b) Call on, solicit, or take away, or attempt to call on,
solicit, or take away any of the customers of the Employer on whom the
Employee called or with whom he initially became acquainted during his
employment with the Employer, either for himself or for any other person,
firm, or corporation.
4.3 Ownership of Employer and Customer Records. The ownership of
Employer and customer records and any other records and books relating in any
manner whatsoever to the customers of the Employer, whether prepared by the
Employee or otherwise coming into his possession, shall be the exclusive
property of the Employer regardless of who actually purchased the original
book or record. All such books and records shall be immediately returned to
the Employer by the Employee on any termination of his employment. If the
Employee purchases any such original book or record, he shall immediately
notify the Employer, who then shall immediately reimburse him.
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4.4 Return of Employer's Property. On the expiration or termination
of employment, the Employee shall immediately deliver to the Employer all
property in his possession or under his control belonging to the Employer
including, but not limited to the equipment, supplies, records, and other
personal property under Employee's control, which is the Employer's, in good
condition, with ordinary wear and tear and damage by any cause beyond the
reasonable control of the Employee excepted.
ARTICLE 5.
NON-COMPETITION
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5.1 Non-Competition Agreement. In connection with this Agreement,
Employee agrees that he shall not, either directly or indirectly, either as an
employee, employer, consultant, agent, principal, partner, shareholder,
corporate officer, director, or in any other individual or representative
capacity, engage or participate in any business that is similar to and/or in
competition in any manner whatsoever with the primary business of the Employer
within the area, herein called "designated area" consisting of the State of
Florida, for so long as Employee is employed by, or associated in any manner
(excluding the status of shareholder) with the Employer .
5.2 Employee agrees not to solicit the customers of the Employer for
his personal account or the account of any other person or entity other than
the Employer at any time while an employee of the Employer. The parties hereto
agree that notwithstanding any provisions of the Florida Codes that this
covenant not to compete is enforceable and necessary to protect the Employer's
trade secrets including, but not limited to, patent and trademark designs,
suppliers and customer lists of the Employer.
ARTICLE 6.
TERMINATION OF EMPLOYMENT
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6.1 Termination. Subject to the notice and other provisions of this
Section 6.1, the Employer shall have the right to terminate the Employee's
employment with the Employer, and the Employee shall have the right to resign
from such employment, at any time and for no stated reason.
(a) Disability. The Employer shall have the right to terminate
the employment of the Executive under this Agreement for disability in the
event Employee suffers an injury, illness or incapacity lasting for a period
of more than six (6) months provided that after such six (6) month period the
Employer shall have given at least thirty (30) days written notice of
termination; provided further, however, that if the Executive is eligible to
receive disability payments pursuant to a disability policy paid for by the
Employer, the Executive shall assign such benefits to the Employer for all
periods as to which he is receiving full payment under this Agreement.
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(b) Death. This Agreement shall terminate upon the death of
Executive. Executive or his beneficiary shall be entitled to receive all base
compensation earned by Executive up to the date of termination and not yet
paid as well as all un-reimbursed expenses
(c) With Cause. The Employer may terminate this Agreement
effective upon delivery of written notice to Executive given at any time
(without any necessity for prior notice) if any of the following shall occur:
(1) Any material breach of Executive's material obligations
under this Agreement, not cured after thirty (30) days prior written notice
from the board of directors:
(2) Executive's gross negligence in the performance of his
duties hereunder;
(3) Executive has committed any of the following: (i) a
felony criminal conviction; (ii) any misdemeanor criminal conviction involving
Executive's lack of honesty or moral turpitude; (iii) drug or alcohol abuse;
or (iv) acts of gross carelessness or gross misconduct.
In the event Employee's employment with the Employer is terminated
pursuant to items 6.1(a), (b), or (c), Executive or his beneficiary shall be
entitled to receive all base compensation earned by Executive up to the date
of termination and all un-reimbursed expenses. For a termination by the
Employer without good cause, Executive shall be entitled to receive the base
salary rate for the remaining Employment Term, all un-reimbursed expenses and
all Option and Registration rights due under Section 3.1(c) hereof.
6.2 Effect of Employer's Merger, Transfer of Assets or Dissolution.
This Agreement shall not be terminated by any merger or consolidation where
the Employer is not the consolidated or surviving corporation but shall be
terminated in the event of voluntary or involuntary dissolution of the
Employer. In the event of a merger, consolidation or sale the Employer shall
take all actions necessary to insure that such merged or consolidated entity
or the buyer, as applicable, is bound by the provisions of this Agreement.
ARTICLE 7.
GENERAL PROVISIONS
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7.1 Damages for Breach of Contract. In the event of a breach of this
Agreement by either the Employer or Employee resulting in damages to the other
party, that party may recover from the party breaching the agreement any and
all damages that may be sustained.
7.2 Governing Law, Jurisdiction and Venue. This Agreement is entered
into under, and shall be governed for all purposes by, the laws of the State
of Florida. Any suit by the Employer to enforce any right hereunder or to
obtain a declaration of any right or obligation hereunder may, at the sole
option of the Employer, be brought (i) in any court of competent jurisdiction
in the State of Florida or (ii) via American Arbitration Association binding
arbitration in Sarasota County, Florida. Employee hereby expressly consents
to the jurisdiction of the foregoing courts.
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7.3 Notices. Any notices to be given hereunder by either party to
the other may be effected by personal delivery in writing by either registered
or certified mail, postage prepaid with return receipt requested. Mailed
notices shall be addressed to the parties at their last known address.
Notices delivered personally shall be deemed communicated as of five (5) days
after mailing.
7.4 No Waiver. No failure by either party hereto at any time to give
notice of any breach by the other party of, or to require compliance with, any
condition or provision of this Agreement shall (i) be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time or (ii) preclude insistence upon strict compliance in the
future.
7.5 Partial Invalidity and Severability. If a court of competent
jurisdiction determines that any provision of this Agreement is invalid or
unenforceable, then the invalidity or unenforceability of that provision shall
not affect the validity or enforceability of any other provision of this
Agreement, and all other provisions shall remain in full force and effect.
7.6 Assignment. This Agreement, and the rights and obligations of the
parties hereunder, are personal and neither this Agreement, nor any right,
benefit or obligation of either party hereto, shall be subject to voluntary or
involuntary assignment, alienation or transfer, whether by operation of law or
otherwise, without the prior written consent of the other party except that
vested rights to payment shall be subject to devise, and shall descend in
accordance with applicable laws of inheritance.
7.7 Attorney's Fees and Costs. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, and all costs, and
disbursements in addition to any other relief to which he may be entitled from
the non-prevailing party.
7.8 Arbitration. Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, shall be settled by arbitration in
accordance with the rules of the American Arbitration Association, and
judgment on the award rendered may be entered in any court having jurisdiction
thereof.
7.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of
which together will constitute one and the same Agreement.
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7.10 Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the employment of the Employee by the Employer and contains all of the
covenants and agreements between the parties with respect to such employment
in any manner whatsoever. Each party to this Agreement acknowledges that no
representations, 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 and binding. Any modification
of this Agreement will be effective only if it is in writing signed by both
parties hereto.
IN WITNESS WHEREOF, this Agreement is executed on the day and year first above
written.
EMPLOYER
TROPICAL PRINTING LLC
A Florida Corporation
/s/ Xxxx X. Xxxxxxx
_______________________________
By: Xxxx X. Xxxxxxx
Its: Vice President
EMPLOYEE
/s/ Xxxxxx Xxxxx
_________________________________
Xxxxxx Xxxxx
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