EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of April 1, 1999
by Xxxxxxxxxxxxxx.xxx Corp., a Nevada corporation (the "Employer"), and Xxxxxxx
X. Xxxxxxx (the "Executive").
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 Xxxxxxxxxxxxxx.xxx
Corp., a Nevada corporation and any of its affiliates.
"DISABILITY" -- as defined in Section 5.2.
"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 5.3.
"FOR GOOD REASON" -- as defined in Section 5.4.
"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 7.2.
"PROPRIETARY ITEMS" -- as defined in Section 6.2(a)(iv).
"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
2
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 to the business of the Employer. The
Executive will, however, 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
$150,000, (the "Salary"), which will be accrued until company has raised capital
then will be payable in equal periodic installments according to the Employer's
customary payroll practices. 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"). The Employer will pay 100% of the monthly health and disability
insurance benefits (including major medical and dental) for the Executive and
his immediate family members.
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 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 2000 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
3
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. TERMINATION
5.1 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 5):
(a) upon the death of the Executive;
(b) upon the disability of the Executive (as defined in
Section 5.2) immediately upon notice from either party to the other;
(c) for cause (as defined in Section 5.3), 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 5.4) upon not less
than thirty days' prior notice from the Executive to the Employer.
5.2 DEFINITION OF DISABILITY. For purposes of Section 5.1, 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 5.2. 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 5.2 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 5.2, 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 5.2, for the purposes of submitting the
Executive to the examinations, and providing the authorization of disclosure,
required under this Section 5.2.
5.3 DEFINITION OF "FOR CAUSE." For purposes of Section 5.1, 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);
4
(c) the appropriation (or attempted appropriation) of a material business
opportunity of the Employer (it being understood that the sale of products
through the internet is not an 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.
5.4 DEFINITION OF "FOR GOOD REASON." For purposes of Section 5.1,
the phrase "for good reason" means the Employer's material breach of this
Agreement.
5.5 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 5.5, 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 5.5, 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 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 5.2, 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
5
(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 5, 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.
6. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
6.1 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 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 provisions of
this Section 6 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.
6.2 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
6
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.
(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
6.3 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.
7. NON-COMPETITION AND NON-INTERFERENCE
7.1 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
provisions of this Section 7 are reasonable and necessary to protect the
Employer's business.
7.2 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
8
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 7.2, 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 7.2 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and 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 7.2
will be extended by the duration of any violation by the Executive of such
covenant.
The Executive will, while the covenant under this Section 7.2 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.
8. GENERAL PROVISIONS
8.1 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 6 and 7) 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 8 or any other
remedies of the Employer, if the Executive breaches any of the provisions of
Section 6 or 7, the Employer will have the right to cease making any payments
otherwise due to the Executive under this Agreement.
8.2 COVENANTS OF SECTIONS 6 AND 7 ARE ESSENTIAL AND INDEPENDENT
COVENANTS. The covenants by the Executive in Sections 6 and 7 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
9
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 6 and 7 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 6 or 7.
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
6 and 7.
8.3 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.
8.4 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.
8.5 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.
8.6 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.
10
8.7 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):
If to Employer: Xxxxxxxxxxxxxx.xxx Corp.
0000 Xxxxx Xxxxx Xxxx
Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
With a copy to: Schifino & Xxxxxxxxx, P.A.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to the Executive: Xxxxxxx X. Xxxxxxx
0000 Xxxxx Xxxxx Xxxx
Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
8.8 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.
8.9 GOVERNING LAW. This Agreement will be governed by the laws of
the State of Nevada without regard to conflicts of laws principles.
8.10 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
11
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.
8.11 SECTION HEADINGS, CONSTRUCTION. The headings of Sections in
this Agreement are provided for convenience only and will not affect its
construction or 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.
8.12 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.
8.13 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.
8.14 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:
XXXXXXXXXXXXXX.XXX CORP.
By:_____________________
As:_____________________ __________________________
Xxxxxxx X. Xxxxxxx
12
