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EXHIBIT 10.12
EXHIBIT "E"
EMPLOYMENT AGREEMENT
BY AND BETWEEN
▇▇▇▇▇▇, INC.
AND
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
THIS EMPLOYMENT AGREEMENT (the "Agreement") is executed on
August 15, 2000 to be effective as of August 1, 2000 (the "Commencement Date")
by and between ▇▇▇▇▇▇, Inc., a Ohio corporation (the "Company"), and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ("Employee").
WHEREAS, the Company is engaged in the distributed learning
business and other related businesses (such activities, present and future,
being hereinafter referred to as the "Business"); and
WHEREAS, the Company and Employee desire to enter into this
Agreement to memorialize their oral understanding, to assure the Company of the
services of Employee for the benefit of the Company and to set forth the
respective rights and duties of the parties hereto.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants, terms and conditions set forth herein, the Company and
Employee agree as follows:
ARTICLE I
EMPLOYMENT
1.1 EMPLOYMENT AND TITLE. As of the Commencement Date, the
Company employs Employee, and Employee accepts such employment, as President of
the Company, all upon the terms and conditions set forth herein.
1.2 DUTIES. During the Initial Term and any Extended Terms (as
hereinafter defined) hereof, Employee shall faithfully perform his duties in
accordance with this Agreement and the Bylaws of the Company, serve the Company
faithfully and to the best of his ability and devote substantially all of his
business time and attention, knowledge, energy and skills to the Company.
Employee shall be responsible for such matters as assigned to him by the Chief
Executive Officer and/or the Board of Directors of the Company in accordance
with the Company's annual business plan, budget and assigned duties. Subject to
the directions of and limitations imposed by the Chief Executive Officer and/or
the Board of Directors of the Company, the Employee shall be responsible for
interpretation and executive implementation of the corporate policies for his
assigned area(s) and shall perform all the duties and have and exercise all
rights and powers usually pertaining and attributable, by law, custom, or
otherwise, with respect
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thereto. Employee shall coordinate and supervise the activities of all employees
of the Company under his control.
The foregoing will not be construed as preventing Employee from making
investments in other business or enterprises or civic or charitable activities
provided that (a) Employee agrees not to become engaged in any other business
activity that interferes with his ability to discharge his duties and
responsibilities to Employer and (b) Employee does not violate any other
provision of this Agreement.
1.3 LOCATION. The principal place of employment and the
location of Employee's principal office shall be in Charlotte, North Carolina,
or at such other location agreed upon by Employee and the Company; provided,
however, Employee shall, when requested by the Chief Executive Officer and/or
the Board of Directors of the Company, or may, if he determines it to be
reasonably necessary, temporarily perform outside of Charlotte, North Carolina
such services as are reasonably required for the proper execution of his duties
under this Agreement. In no event, however, shall Employee be required to
permanently relocate his principal place of employment or his principal
residence, without his consent.
1.4 REPRESENTATIONS. Each party represents and warrants to the
other that he/it has full power and authority to enter into and perform this
Agreement and that his/its execution and performance of this Agreement shall not
constitute a default under or breach of any of the terms of any agreement to
which he/it is a party or under which he/it is bound. Each party represents that
no consent or approval of any third party is required for his/its execution,
delivery and performance of this Agreement or that all consents or approvals of
any third party required for his/its execution, delivery and performance of this
Agreement have been obtained.
ARTICLE II
TERM
2.1 TERM. The term of Employee's employment hereunder (the
"Term") shall commence as of the Commencement Date and shall continue through
the third anniversary of the Commencement Date (the "Scheduled Termination
Date") unless renewed or earlier terminated pursuant to the provisions of this
Agreement. Assuming all conditions of this Agreement have been satisfied and
there has been no breach of the Agreement during its initial term, the parties
may agree to extend the term ("Extended Term").
ARTICLE III
COMPENSATION
3.1 SALARY. As compensation for the services to be rendered by
Employee, the Company shall pay Employee, during the Term of this Agreement, an
annual base salary of not less than Seventy-five Thousand Dollars ($75,000),
which base salary shall accrue monthly (prorated for periods less than a month)
and shall be paid in equal bi-monthly installments, in arrears or as the
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Employee and the Company otherwise agree. The base salary will be reviewed
annually, or as appropriate, by the Chief Executive Officer and the Board of
Directors of the Company. At any time the base salary may be increased for the
remaining portion of the Term if so determined by the Chief Executive Officer
and Board of Directors of the Company after a review of Employee's performance
of his duties.
3.2 BONUSES. The Company may pay the Employee an annual bonus
(the "Annual Bonus") as determined by the Chief Executive Officer and Board of
Directors of the Company. The Annual Bonus, if any, shall be payable within
ninety (90) days after the end of the most recent fiscal year to which the Bonus
relates.
3.3 NONQUALIFIED STOCK OPTIONS. The Company may, subject to
the discretion of the Compensation Committee of Compass Knowledge Holdings, Inc.
("CKHI"), grant to Employee nonqualified options to acquire shares of CKHI
common stock (the "Option Shares").
3.4 BENEFITS. Employee shall be entitled, during the Term
hereof, to the same medical, hospital, pension, profit sharing, dental, and
long-term disability coverage and life insurance coverage as are available to
the CKHI's vice presidents on the Commencement Date together with the following
additional benefits:
(a) The Company's normal vacation allowance for all employees
who are executive officers of the Company, but not less than four (4)
weeks annually, with the option to carry over unused vacation days.
(b) The Employee will be entitled to participate in any
benefit plan or program of the Company which may currently be in place
or implemented in the future.
(c) During the Term, Employee will be entitled to receive, in
addition to and not in lieu of base salary, bonus or other
compensation, such as other benefits as Company may provide for its
officers in the future.
3.5 WITHHOLDING. Any and all amounts payable under this
Agreement, including, without limitation, amounts payable under this Article III
and Article VII, which are subject to withholding for such federal, state and
local taxes as the Company, in its reasonable judgment, determines to be
required pursuant to any applicable law, rule or regulation.
ARTICLE IV
WORKING FACILITIES, EXPENSES AND INSURANCE
4.1 WORKING FACILITIES AND EXPENSES. Employee shall be
furnished with an office at the principal executive offices of the Company, or
at such other location as agreed to by Employee and the Company, and other
working facilities and secretarial and other assistance suitable to his position
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and reasonably required for the performance of his duties hereunder. The Company
shall reimburse Employee for all of Employee's reasonable expenses incurred
while employed and performing his duties under and in accordance with the terms
and conditions of this Agreement, subject to Employee's full and appropriate
documentation, including, without limitation, receipts for all such expenses in
the manner required pursuant to Company's policies and procedures and the
Internal Revenue Code of 1986, as amended (the "Code") and applicable
regulations as are in effect from time to time.
4.2 INSURANCE. The Company may secure in its own name or
otherwise, and at its own expense, life, disability and other insurance covering
Employee or Employee and others, and Employee shall not have any right, title or
interest in or to such insurance other than as expressly provided herein.
Employee agrees to assist the Company in procuring such insurance by submitting
to the usual and customary medical and other examinations to be conducted by
such physicians(s) as the Company or such insurance company may designate and by
signing such applications and other written instruments as may be required by
any insurance company to which application is made for such insurance.
ARTICLE V
ILLNESS OR INCAPACITY
5.1 RIGHT TO TERMINATE. If, during the Term of this Agreement,
Employee shall be unable to perform in all material respects his duties
hereunder for a period exceeding six (6) consecutive months by reason of illness
or incapacity, this Agreement may be terminated by the Company in its reasonable
discretion pursuant to Section 7.2 hereof.
5.2 RIGHT TO REPLACE. If Employee's illness or incapacity,
whether by physical or mental cause, renders him unable for a minimum period of
sixty (60) consecutive calendar days to carry out his duties and
responsibilities as set forth herein, the Company shall have the right to
designate a person to replace Employee temporarily in the capacity described in
Article I hereof; provided, however, that if Employee returns to work from such
illness or incapacity within the six (6) month period following his inability
due to such illness or incapacity, he shall be entitled to be reinstated in the
capacity described in Article I hereof with all rights, duties and privileges
attendant thereto.
5.3 RIGHTS PRIOR TO TERMINATION. Employee shall be entitled to
his full remuneration and benefits hereunder during such illness or incapacity
unless and until an election is made by the Company to terminate this Agreement
in accordance with the provisions of this Article.
5.4 DETERMINATION OF ILLNESS OR INCAPACITY. For purposes of
this Article V, the term "illness or incapacity" shall mean Employee's inability
to perform his duties hereunder substantially on a full-time basis due to
physical or mental illness as determined by a physician selected by the Company
and the Employee.
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ARTICLE VI
CONFIDENTIALITY AND INTELLECTUAL PROPERTY
6.1 CONFIDENTIALITY. During the Term of this Agreement and
thereafter, Employee shall not divulge, communicate, use to the detriment of the
Company, or for the benefit of any other business, firm, person, partnership or
corporation, or otherwise misuse, any "Confidential Information", pertaining to
the Company (except as may be required under legal process by subpoena or other
court order; provided that Employee will take reasonable steps to give the
Company sufficient prior written notice in order to contest such requirement or
order) including, without limitation, all (i) data or trade secrets, including
secret processes, formulas or other technical data; (ii) production methods;
(iii) customer lists; (iv) personnel lists; (v) proprietary information; (vi)
financial or corporate records; (vii) operational, sales, promotional and
marketing methods and techniques; (viii) development ideas, acquisition
strategies and plans; (ix) financial information and records; (x) "know-how" and
methods of doing business; and (xi) computer programs, including source codes
and/or object codes and other proprietary, competition-sensitive or technical
information or secrets developed with or without the help of Employee. Employee
acknowledges that any such information or data he may have acquired was received
in confidence and by reason of his relationship to the Company. Confidential
Information, data or trade secrets shall not include any information which: (a)
at the time of disclosure is within the public domain or is generally known
within the industry; (b) after disclosure becomes a part of the public domain or
generally known within the industry through no fault, act or failure to act,
error, effort or breach of this Agreement by Employee; (c) is known to the
recipient at the time of disclosure; (d) is subsequently discovered by Employee
independently of any disclosure by the Company; (e) is required by order,
statute or regulation, of any governmental authority to be disclosed to any
federal or state agency, court or other body; or (f) is obtained from a third
party who has acquired a legal right to possess and disclose such information.
Notwithstanding anything in this Agreement to the contrary, this Section 6.1
shall have no application during the period following the Term of this Agreement
in the event that this Agreement is terminated by the Employee pursuant to
Section 7.2(d) or (e) of this Agreement.
6.2 RECORDS. All documents, papers, materials, notes, books,
correspondence, drawings and other written and graphic records relating to the
Business of the Company which Employee shall prepare or use, or come into
contact with, shall be and remain the sole property of the Company and,
effective immediately upon the termination of the Employee's employment with the
Company for any reason, shall not be removed from the Company's premises without
the Company's prior written consent and any such documents, papers, materials,
notes, books, correspondence, drawings and other written and graphic records in
his possession or under his control shall be immediately returned to the
Company.
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6.3 IDEAS AND INVENTIONS. Employee agrees to assign to the
Company all Employee's right, title and interest in or to any and all ideas,
concepts, know-how, techniques, processes, methods, applications, inventions,
discoveries, developments, innovations and improvements ("Inventions") which
relate in any respect to the Company, its parent company or their subsidiaries
or their businesses as they now or hereafter exist which Employee conceives,
creates, designs, develops and/or makes, whether alone or with others, during
Employee's employment with the Company. Employee agrees to disclose all such
Inventions to the Company promptly, and to provide all assistance reasonably
requested by the Company in the preservation of its interests in the Inventions,
such as by executing documents, testifying, etc., such assistance to be provided
at the Company's expense but without any additional compensation to Employee,
unless Employee is called upon to render such assistance after the termination
of this Agreement for any reason, at which time Employee shall be entitled to a
fair and reasonable rate of compensation for such assistance and provided that
any such assistance shall not unreasonably interfere with any business or other
activities in which Employee may be engaged. Employee shall, at the request and
expense of the Company, assist the Company or its nominees to obtain patents for
such Inventions for which the Company, its parent company or their subsidiaries
has or obtains any right, title or interest in any countries throughout the
world. Such Inventions shall be the property of the Company or its nominees,
whether patented or not. Employee shall and does, without charge to the Company,
assign to the Company, all Employee's right, title, and interest in and to such
Inventions, including without limitation patents and patent applications and
reissues thereof. Employee agrees to execute, acknowledge, and deliver any
instruments confirming the complete ownership by the Company of such Inventions.
Such assignments shall include the right to ▇▇▇ for infringement.
6.4. COPYRIGHTS. Employee agrees that any Invention or other
work (collectively hereinafter called "Work") prepared, developed or produced by
Employee while an Employee of the Company, whether alone or with others, and
which relates in any respect to the Company, its parent company or their
subsidiaries or their businesses and for which is eligible for copyright
protection in the United States or elsewhere shall be a work made for hire. If
any such Work is deemed for any reason not to be a work made for hire, Employee
shall assign all right, title and interest in the copyright in such Work, and
all extensions and renewals thereof, to Company, and agrees to provide all
assistance reasonably requested by Company in the establishment, preservation
and enforcement of its copyright in such Work, such assistance to be provided at
Company's expense but without any additional compensation to Employee, unless
Employee is called upon to render such assistance after the termination of this
Agreement for any reason, at which time Employee shall be entitled to a fair and
reasonable rate of compensation for such assistance and provided that any such
assistance shall not unreasonably interfere with any business or other
activities in which Employee may be engaged. Employee agrees to waive all moral
rights relating to the Work developed or produced, including without limitation
any and all rights of identification of authorship and any and all rights of
approval, restriction or limitation on use or subsequent modifications.
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ARTICLE VII
TERMINATION
7.1 TERMINATION FOR CAUSE. This Agreement and the employment
of Employee may be terminated by the Company "For Cause" under any one of the
following circumstances:
(a) Employee has committed any material act of fraud,
misappropriation or theft against the Company.
(b) Employee's default or breach of any material provision of
this Agreement; provided, that Employee shall not be in default
hereunder unless (i) he shall have failed to cure such default or
breach within thirty (30) days of written notice thereof by the Company
to Employee or (ii) Employee shall have duly received notice of at
least three (3) prior instances of such breach or default (whether or
not cured by Employee).
(c) Employee engages in gross negligence, malfeasance or
willful misconduct in the performance of his duties hereunder;
provided, that Employee shall not be in default hereunder unless (i) he
shall have failed to cure such default or breach within thirty (30)
days of written notice thereof by the Company to Employee, or (ii)
Employee shall have duly received notice of at least three (3) prior
instances of such breach or default (whether or not cured by Employee).
(d) At the election of the Employee (except for an election
pursuant to Section 7.2(d) or (e) of this Agreement.
(e) The conviction (or plea of no contest) of Employee of a
crime involving moral turpitude (not including driving while under the
influence of alcohol unless Employee is convicted on more than one
occasion or if he is incarcerated for more than 45 days) by a court of
competent jurisdiction as to which no further appeal can be taken.
(f) The willful, continued and unreasonable failure by
Employee, to comply in all material respects with the Company's written
conflict of interest policy, previously made known to Employee, if any,
then in effect; provided that (i) Employee shall not be in default
hereunder unless he shall have failed to cure such default within
thirty (30) days of written notice thereof by the Company to the
Employee or (ii) Employee shall have received written notice of at
least three prior instances of such breach or default (whether or not
cured by Employee).
(g) The knowing engagement in any activity which would
constitute a material violation of the provisions of the Company's
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy or business ethics policy, if any, then in
effect and previously made known to Employee.
(h) At the election of the Company upon Employee's breach of
any material provision of that certain Agreement and Plan of Stock
Purchase by and among Compass Knowledge Holdings, Inc., Compass
Acquisition Corp., and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ As Custodian For ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Under The Ohio Transfers To
Minors Act and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, Inc. of even date
herewith (the "Stock Purchase Agreement"); provided, that Employee
shall not be in default under the Stock Purchase Agreement unless (i)
he shall have failed to cure such default or breach within thirty (30)
days of written notice thereof by the Company or CKHI to Employee, or
(ii) Employee shall have duly received notice of at least three (3)
prior instances of such breach or default (whether or not cured by
Employee.
A termination For Cause under this Section 7.1 shall be
effective upon the date set forth in a written notice of termination delivered
by the Company to Employee
7.2 TERMINATION WITHOUT CAUSE. This Agreement and the
employment of the Employee may be terminated "Without Cause" as follows:
(a) By mutual agreement of the parties hereto.
(b) At the election of the Company by its giving not less than
sixty (60) days prior written notice to Employee in the event of an
illness or incapacity described in Article 5.1.
(c) Upon Employee's death.
(d) At the election of Employee upon the Company's default or
breach of any material provision of this Agreement; provided, that the
Company shall not be in default hereunder unless (i) it shall have
failed to cure such default or breach within thirty (30) days of
written notice thereof by the Employee to the Company or (ii) the
Company shall have duly received notice of a least three (3) prior
instances of such breach or default (whether or not cured by the
Company).
(e) At the election of Employee upon the Company's or CKHI's
breach of any material provision of the Stock Purchase Agreement;
provided, that the Company or CKHI, as the case may be, shall not be in
default under the Stock Purchase Agreement unless (i) it shall have
failed to cure such default or breach within thirty (30) days of
written notice thereof by the Employee to the Company or CKHI, as the
case may be, or (ii) the Company or CKHI, as the case may be, shall
have duly received notice of at least three (3) prior instances of such
breach or default (whether or not cured by the Company or CKHI).
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A termination Without Cause under Section 7.2(b), 7.2(d) or
7.2(e) hereof shall be effective upon the date set forth in a written notice of
termination delivered in accordance with the notice provisions of such sections.
A termination Without Cause under Sections 7.2(a) or (c) shall be automatically
effective upon the date of mutual agreement or the date of death of the
Employee, as the case may be.
7.3 EFFECT OF TERMINATION FOR CAUSE. If Employee's employment
is terminated "For Cause":
(a) Employee shall be entitled to accrued base salary under
Section 3.1 hereof through the date of termination.
(b) Employee shall be entitled to accrued bonuses, if any,
under Section 3.2 and benefits under Section 3.4 hereof through the
date of termination, subject to any right to continue said benefits at
Employee's cost as provided by law and as provided in any benefit plan
in which Employee is a participant.
(c) Employee shall be entitled to reimbursement for expenses
accrued through the date of termination in accordance with the
provisions of Section 4.1 hereof.
(d) All unvested Option Shares, if any, under Section 3.3
hereof shall be immediately forfeited.
(e) Employee shall be required to repay (and the Company and
CKHI may withhold) any and all Incentive Payments (as that term is
defined the Stock Purchase Agreement) which CKHI is otherwise required
to pay to Employee with respect to any and all Incentive Payments which
are calculated based upon "Formula Revenues Derived From Additional
Business" (as that term is defined in the Stock Purchase Agreement) and
collected subsequent to the date of termination.
(f) Except as provided in Article X, this Agreement shall
thereupon terminate and cease to be of any further force or effect.
7.4 EFFECT OF TERMINATION WITHOUT CAUSE. If Employee's
employment is terminated "Without Cause":
(a) Employee shall be entitled to (i) one (1) year's base
salary, or (ii) the base salary for the remaining Term of this
Agreement, if less than one (1) year.
(b) Employee shall be entitled to reimbursement for expenses
accrued through the date of termination in accordance with the
provisions of Section 4.1 hereof.
(c) Employee shall be entitled to accrued bonuses under
Section 3.2 and benefits under Section 3.4 hereof through the date of
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termination, subject to any right to continue said benefits at
Employee's cost as provided by law and as provided in any benefit plan
in which Employee is a participant.
(d) All unvested Option Shares under Section 3.3 hereof shall
immediately vest in full.
(e) Except as provided in Article XI, this Agreement shall
thereupon terminate and cease to be of any further force or effect.
ARTICLE VIII
NON-COMPETITION AND NON-INTERFERENCE
8.1 NONCOMPETITION; NONSOLICITATION. As an inducement to the Company to
execute this Agreement and in order to preserve the goodwill associated with the
business of the Company, its parent company and their subsidiaries and in
addition to and not in limitation of any covenants contained in any agreements
executed and delivered herewith, Employee hereby covenants and agrees as
follows:
(a) COVENANT NOT TO COMPETE. During the term of this Agreement
and for a period of two (2) years after the effective date of a
Termination For Cause, Employee will not directly or indirectly, within
the Territory, act as an officer, manager, executive, consultant,
advisor or agent or controlling shareholder, partner or member to any
business or otherwise engage in any business which is, competitive,
either directly or indirectly, with the Business, as defined herein,
nor shall Employee become employed by such a business in a capacity
which would require Employee to carry out, in whole or in part, either
directly or indirectly, the duties Employee has performed or is
expected to perform for the Company or which are competitive with the
Business or otherwise engage in any practice the purpose of which is to
evade the provisions of this covenant not to compete or to commit any
act which adversely affects the Company, its parent company and their
subsidiaries or their business. For purposes of this Article VIII, the
"Business" shall be defined as creating, designing, developing, owning,
leasing and/or operating distributed learning and education business
and other related businesses as are being conducted by the Company (or
such business as is under development) at the time of such termination.
For purposes of this Article VIII, the "Territory" shall be defined as
the United States of America.
(b) NONSOLICITATION; EMPLOYEES. Employee agrees that during
the Term of this Agreement and for two (2) years after the effective
date of a Termination For Cause, Employee will not offer employment to
any person who was employed by the Company, its subsidiaries as of the
effective date of a Termination For Cause without the prior written
consent of the Company.
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(c) NONSOLICITATION; CUSTOMERS. Employee agrees that, during
the Term of this Agreement and for two (2) years after the effective
date of a Termination For Cause, Employee will not solicit customers or
clients of the Company, its parent company or their subsidiaries, with
a view to interfering or competing with the business of the Company,
its parent company or their subsidiaries or providing any product or
service that is provided by the Company, its parent company or their
subsidiaries.
Notwithstanding the foregoing, if Employee (after termination
of his employment with the Company) shall develop other education
programs, services or products that may be marketed to school districts
and said programs, services or products are not substantially similar
to programs, services and products marketed by the Company, CKHI or its
subsidiaries during Employee's term of employment ("Non-competing
Products"), it shall not violate this Covenant Not to Compete if
Employee to markets said Non-competing Products and solicits the
Company's customers. Additionally, the restrictive covenants shall not
prohibit the ownership of securities of corporations which are listed
on a national securities exchange or traded in the national
over-the-counter market in an amount which shall not exceed 5% of the
outstanding shares of any such corporation. The parties agree that the
Company may sell, assign or otherwise transfer this covenant not to
compete, in whole or in part, to any person, corporation, firm or
entity that purchases all or substantially all of the Company's assets
or stock (and assumes the obligations of the Company). In the event a
court of competent jurisdiction determines that the provisions of the
restrictive covenants are excessively broad as to duration,
geographical scope or activity, it is expressly agreed that the
restrictive covenants shall be construed so that the remaining
provisions shall not be affected, but shall remain in full force and
effect, and any such over broad provisions shall be deemed, without
further action on the part of any person, to be modified, amended
and/or limited, but only to the extent necessary to render the same
valid and enforceable in such jurisdiction.
8.2. EQUITABLE RELIEF FOR VIOLATIONS. Employee agrees that the
provisions and restrictions contained in this Section are necessary to protect
the legitimate continuing interests of the Company, its parent company and their
subsidiaries and that any violation or breach of these provisions will result in
irreparable injury to the Company, its parent company and their subsidiaries for
which a remedy at law would be inadequate and that, in addition to any relief at
law which may be available to the Company, its parent company or their
subsidiaries for such violation or breach and regardless of any other provision
contained in this Agreement, the Company, its parent company and their
subsidiaries shall be entitled to injunctive and other equitable relief as a
court may grant after considering the intent of this Section.
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ARTICLE IX
MISCELLANEOUS
9.1 NO WAIVERS. The failure of either party to enforce any
provision of this Agreement shall not be construed as a waiver of any such
provision, nor prevent such party thereafter from enforcing such provision or
any other provision of this Agreement.
9.2 NOTICES. Any notice to be given to the Company and
Employee under the terms of this Agreement may be delivered personally, by
telecopy, telex or other form of written electronic transmission, or by
registered or certified mail, postage prepaid, and shall be addressed as
follows:
IF TO THE COMPANY: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO EMPLOYEE: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Either party may hereafter notify the other in writing of any change in
address. Any notice shall be deemed duly given (i) when personally delivered,
(ii) when telecopied, telexed or transmitted by other form of written electronic
transmission (upon confirmation of receipt) or (iii) on the third day after it
is mailed by registered or certified mail, postage prepaid, as provided herein.
9.3 SEVERABILITY. The provisions of this Agreement are
severable and if any provision of this Agreement shall be held to be invalid or
otherwise unenforceable, in whole or in part, the remainder of the provisions,
or enforceable parts thereof, shall not be affected thereby.
9.4 SUCCESSORS AND ASSIGNS. The rights and obligations of the
Company under this Agreement shall inure to the benefit of and be binding upon
the successors and assigns of the Company, including the survivor upon any
merger, consolidation, share exchange or combination of the Company with any
other entity. Except as provided in the preceding sentence, neither the Company
or Employee shall not have the right to assign, delegate or otherwise transfer
any duty or obligation to be performed by it or him hereunder to any person or
entity.
9.5 ENTIRE AGREEMENT. This Agreement supersedes all prior and
contemporaneous agreements and understandings between the parties hereto, oral
or written, and may not be modified or terminated orally. No modification,
termination or attempted waiver shall be valid unless in writing, signed by the
party against whom such modification, termination or waiver is sought to be
enforced. This Agreement was the subject of negotiation by the parties hereto
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and their counsel. The parties agree that no prior drafts of this Agreement
shall be admissible as evidence (whether in any arbitration or court of law) in
any proceeding which involves the interpretation of any provisions of this
Agreement.
9.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida without
reference to the conflict of law principles thereof.
9.7 SECTION HEADINGS. The section headings contained herein
are for the purposes of convenience only and are not intended to define or limit
the contents of said sections.
9.8 FURTHER ASSURANCES. Each party hereto shall cooperate and
shall take such further action and shall execute and deliver such further
documents as may be reasonably requested by the other party in order to carry
out the provisions and purposes of this Agreement.
9.9 GENDER. Whenever the pronouns "he" or "his" are used
herein they shall also be deemed to mean "he" or "his" or "it" or "its" whenever
applicable. Words in the singular shall be read and construed as though in the
plural and words in the plural shall be read and construed as though in the
singular in all cases where they would so apply.
9.10 COUNTERPARTS. This Agreement may be executed in
counterparts, all of which taken together shall be deemed one original.
9.11 INDEMNIFICATION. The Company shall be to the fullest
extent permitted by law indemnify, defend and hold harmless Employee from and
against any and all claims, demands, liabilities, damages, losses and expenses
(including reasonable attorneys fees, court costs and disbursements) arising out
of the performance by him of his duties hereunder except in the case of his
willful misconduct or actions by Employee outside the scope of his
responsibilities and duties as set forth herein. The Company will carry
directors and officers insurance with limits of not less than $50,000.
ARTICLE X
SURVIVAL
10.1 SURVIVAL. The provisions of Articles VI, VII, VIII, and
IX, of this Agreement shall survive the termination of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
▇▇▇▇▇▇, Inc.
a Ohio corporation,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Title: CEO
----------------------------------
EMPLOYEE
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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