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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is dated as of April 11,
2000, between ELECTRONIC MEDICAL DISTRIBUTION, INC. d/b/a XXX.XXX, a Delaware
corporation (the "Company"), and XXXXXXXX X. FAUX (the "Executive").
1. Employment. The Company hereby agrees to employ the Executive,
and the Executive hereby agrees to be employed by the Company, on the terms and
conditions set forth herein.
2. Term.
(a) The "Initial Term" of the employment of the Executive
by the Company as provided in Section 1 will commence on April 11, 2000
(the "Effective Date") and will terminate at 11:59 p.m. on April 11,
2003 (the "Expiration Date") unless extended or sooner terminated as
hereinafter provided (such period, the "Employment Period").
(b) The "Employment Period" may be extended beyond the
Initial Term by the mutual agreement of the parties in writing at least
ninety (90) days prior to the end of the Initial Term (the "Extended
Term").
(c ) The "Business" of the Company shall be medical
e-commerce online and provide physicians with internet medication
management solutions.
3. Position, Duties and Responsibilities.
(a) Position. The Executive hereby agrees to serve as
President of xXX.xxx reporting to the Board of Directors of the Company
("Board") and to the Chief Executive Officer of the Company ("CEO").
The Executive will observe on the Board for six (6) months and then
Executive will be reviewed at the end of said period by the Board of
Directors to become a member.
Duties/Goals/Objectives:
- Review current company structure and
design/form/develop new infrastructure structure to
meet the company business plan needs for the next 24
months.
- Review and complete for years 1, 2 and 3 Business
Plans and financial projections/forecasts.
- Review and implement reporting procedures and
accountability.
- Provide broader coverage of the company on Wall
Street.
- Assist in raising capital for eMD and make
preparations for taking the company public.
- Set financial and performance goals and revenue
objectives including timetables.
- Provide weekly report to Xxx Xxxxx.
(b) Place of Employment. During the term of this
Agreement, the Company's headquarters shall be located in the greater
Atlanta, Georgia area.
(c) Other Activities. Except with the prior written
approval of the Board (which the Board may grant or withhold in its
sole and absolute discretion), the Executive, during the Employment
Period, will not (i) accept any other employment, or (ii) engage,
directly or indirectly, in any other business activity (whether or not
pursued for pecuniary advantage) that is or may be competitive with or
that might place him in a competing position to, that of the Company or
any of its affiliates. Notwithstanding the foregoing, the Company
agrees that the Executive (or affiliates of the Executive) shall be
permitted: (i) to make any passive personal investments that are not in
a business activity that is directly or indirectly competitive with the
Company (ii) to participate in industry organizations, (iii) with the
consent of the Board of Directors of the Company, to be a member of
Boards of Directors of other entities which do not directly compete
with the Company, and (iv) to participate in charitable or educational
activities.
(d) Present Outside Activities. Executive shall disclose
to the Board and to the CEO all outside activities in which he is
involved and any apparent conflict of interest prior to the execution
of this Agreement.
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4. Compensation and Related Matters.
(a) Salary and Bonus. During the Employment Period, the
Company shall pay the Executive a salary of two hundred fifty thousand
dollars ($250,000.00) annually (the "Salary"). The Executive shall also
be eligible for bonuses of 50% of the Executive's salary as may be
determined in the sole discretion of the Board of Directors and/or the
CEO. All Salary and bonuses to be paid consistent with the standard
payroll practices of the Company (e.g., timing of payments and standard
employee deductions, such as income tax withholdings, social security,
etc.).
(b) Stock Options.
(1) In addition to the Salary, the Executive
shall be entitled to receive a stock option
granted in accordance with the terms and
conditions set forth in the Company's stock
option plan and the stock option agreement.
The amount of shares granted under the stock
option shall be 900,000 vested over three
years in equal annual amounts at a strike
price of $4.67.
(2) Stock option break-up fee. If both parties
agree that the Executive's employment with
Company terminates prior to April 11, 2001,
then Company will give 50,000 options at a
strike price of $4.67.
(c) Vacation. During the Employment Period Executive
shall be entitled to 20 days of vacation during each calendar year and
shall not be cumulative, unless and until the Company changes its
policy toward accumulation of vacation days for other employees of the
Company in which case Executive's vacation days shall follow such
policy of the Company. Unless and until such policy change at no time
shall Executive be entitled to receive more than 20 days of vacation.
(d) Business Expenses. The Company will reimburse the
Executive for reasonable bona fide business expenses incurred on behalf
of the Company in the ordinary course of business, provided, however,
that the expense is otherwise deductible by the Company as an ordinary
and necessary business expense for federal income tax purposes.
(e) Relocation Expenses: Total estimate cost for
relocation $50,000 +/- 10% either way. This amount includes
compensation of relocation from current property to the Atlanta,
Georgia area home. Reimbursement of real estate commissions resulting
from sale of current home and closing costs pursuant to the purchase of
the Atlanta area home. Costs that are not included would be the Brokers
costs. Reimbursable costs include moving of personal items, mover and
travel expenses. The Executive will also receive temporary living
expenses of $8,000.
(f) Other Benefits. The Executive shall generally be
entitled to participate in or receive health, long-term disability
insurance, and similar benefits as the Company provides from time to
time to its executives. The Executive shall cooperate with the issuance
of a key man term life insurance policy for the benefit of the Company,
if so requested by the Company.
(g) Withholding. All salary, bonus payments, stock option
exercises, benefit payments and other payments due to Executive under
this Agreement shall be paid in a manner consistent with the standard
payroll practices of the Company. The Company may withhold from any
payment any required taxes or other governmental withholdings,
insurance or benefit payments and similar items.
(h) CHANGE OF CONTROL. IN THE EVENT THERE IS A CHANGE OF
CONTROL OF THE COMPANY, THEN THIS OPTION SHALL NOT TERMINATE BUT RATHER OPTIONEE
SHALL HAVE THE IMMEDIATE RIGHT TO EXERCISE THIS OPTION WITH RESPECT TO ALL
SHARES GRANTED PURSUANT TO THIS OPTION AT ANY TIME, NOTWITHSTANDING THE
PROVISION OF SECTION 6 HEREOF, PROVIDED, HOWEVER, THAT SHOULD THE CHANGE OF
CONTROL RESULT IN THE TERMINATION OF THIS OPTION WITHOUT THE SIMULTANEOUS
CONVERSION OF THIS OPTION INTO OPTIONS TO PURCHASE LIKE STOCK OF THE COMPANY, OR
A CORPORATION ACQUIRING OR SUCCEEDING TO THE RIGHTS OF THE COMPANY IN SUCH
CHANGE OF CONTROL, UPON TERMS SUBSTANTIALLY SIMILAR TO THOSE DESCRIBED HEREIN,
THEN OPTIONEE SHALL HAVE THE IMMEDIATE RIGHT UPON SUCH CHANGE OF CONTROL TO
EXERCISE THIS OPTION WITH RESPECT TO ALL SHARES GRANTED PURSUANT TO THIS OPTION
AT ANY TIME, REGARDLESS OF WHETHER OPTIONEE'S EMPLOYMENT WITH THE COMPANY HAS
TERMINATED.
FOR PURPOSES OF THIS SECTION, "CHANGE OF CONTROL" OF THE COMPANY SHALL
BE DEEMED TO HAVE OCCURRED IF (I) A TENDER OFFER SHALL BE MADE AND CONSUMMATED
FOR THE OWNERSHIP OF 50% OR MORE OF THE OUTSTANDING VOTING SECURITIES OF THE
COMPANY, (II) THE COMPANY SHALL SELL SUBSTANTIALLY ALL OF ITS ASSETS TO ANOTHER
CORPORATION THAT IS NOT A WHOLLY OWNED SUBSIDIARY, (III) A PERSON, WITHIN THE
MEANING OF SECTION 3 (A) 9 OR OF SECTION 13 (A) (3) (AS IN EFFECT ON THE DATE
HEREOF) OF THE SECURITIES EXCHANGE ACT OF 1934, SHALL ACQUIRE 50% OR MORE OF THE
OUTSTANDING VOTING SECURITIES OF THE COMPANY (WHETHER DIRECTLY, INDIRECTLY,
BENEFICIALLY OR OF RECORD), OR (IV) THERE SHALL BE A CHANGE WITHIN THE PERIOD
BEGINNING WITH THE FIRST DAY AFTER ANY ANNUAL MEETING OF STOCKHOLDERS OF THE
COMPANY, OF MORE THAN TWO-THIRDS OF ITS MEMBERS OF THE BOARD OF DIRECTORS OF THE
COMPANY. FOR
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PURPOSES HEREOF, OWNERSHIP OF VOTING SECURITIES SHALL TAKE INTO ACCOUNT AND
SHALL INCLUDE OWNERSHIP AS DETERMINED BY APPLYING THE PROVISIONS OF RULE
13D-3(1)(I) (AS IN EFFECT ON THE DATE HEREOF) PURSUANT TO THE SECURITIES
EXCHANGE ACT OF 1934.
5. Termination or Resignation.
(a) Termination. The Executive's employment hereunder
shall be, or may be, as the case may be, terminated and shall
constitute a "Termination" under the following circumstances:
(i) Death. The Executive's employment hereunder
shall terminate upon his death.
(ii) Disability. The Executive's employment
hereunder shall terminate on the Executive's physical or mental
disability or infirmity which, in the opinion of a competent physician
selected by the Board, renders the Executive unable to perform his
duties under this Agreement for more than 30 days during any 120-day
period.
(iii) With Cause. The Company may terminate the
Executive's employment hereunder for Cause. "Cause" shall mean (a)
Executive's material breach of any of the terms of this Agreement, (b)
Executive's conviction of a crime involving moral turpitude or
constituting a felony under the laws of any state, the District of
Columbia or of the United States, (c) Executive's repeated failure or
refusal to follow the directives of the Board or the CEO; (d)
Executive's inappropriate business conduct that is directly related to
Executive's activities on behalf of the Company that may cause material
harm to the business interests of the Company; or (e) Executive's
inability to practice medicine for any reason, including, but not
limited to, the loss of Executive's professional license to practice
medicine.
(iv) By the Company for Any Other Reason. The
Company may terminate the Executive's employment hereunder at any time
for any reason other than the Executive's Death or Disability or for
Cause.
(v) Resignation of Executive. The Executive may
voluntarily resign his position and terminate his employment and Salary
with the Company at any time, with or without cause, by delivery of a
written notice of resignation to the Company (the "Notice of
Resignation"). The Notice of Resignation shall set forth the date such
resignation shall become effective (the "Date of Resignation"), which
date shall, in any event, be at least thirty (30) days and no more than
sixty (60) days from the date the Notice of Resignation is delivered to
the Company. At its option, the Company may reduce such notice period
to any length, upon written notice to the Executive.
(b) Notice of Termination by Company. Any termination of
the Executive's employment by the Company shall be communicated by
written Notice of Termination to the Executive. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice that shall
indicate the specific termination provision in this Agreement relied
upon and shall set forth, if applicable, in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated. "Date of
Termination" shall mean (i) if the Executive's employment is terminated
by his death, the date of his death, (ii) if the Executive's employment
is terminated by reason of his disability, the date of the opinion of
the physician referred to in Section 5(a)(ii), above, (iii) if the
Executive's employment is terminated by the Company for Cause pursuant
to subsection 5(a)(iii) above or without Cause pursuant to subsection
5(a)(iv) above, the date specified in the Notice of Termination and
(iv) if the Executive voluntarily resigns pursuant to subsection
5(a)(v) above, the date of the Notice of Resignation.
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(c) Terminability of Employment. Notwithstanding the Term
of this Agreement and the annual salary to be paid to the Executive
during his employment with the Company, nothing in this Agreement
should be construed as to confer any right of the Executive to be
employed by the Company for a fixed or definite term. Subject to
Section 6 hereof, the Executive hereby agrees that the Company may
dismiss him under subsection 5(a) hereof. The Executive's employment
with the Company may be terminated by the Company at any time by
delivery of a Notice of Termination to the Executive, for any reason,
with or without cause, without liability except with respect to the
payments provided for by Section 6.
(d) Termination Obligations. In exchange for the Company
entering into the Agreement and payment of the Severance Payments
provided for in Sections 6(b) and 6(e) herein, the Executive agrees
that, at the time of his resignation or termination from the Company:
(i) The Executive will promptly return to the
Company all personal property, both tangible
and intangible, furnished to or prepared by
the Executive in the course of or incident
to his employment, the Executive hereby
acknowledging and agreeing that such
property belongs to the Company, such that
following termination the Executive will not
retain any written or other tangible
material containing any proprietary
information of the Company. "Personal
property" includes, without limitation, all
computers, cellular phones, company credit
cards, access keys, books, manuals, records,
reports, notes, contracts, lists and other
documents or materials, or copies thereof
(including computer files), and all other
proprietary information relating to the
business of the Company.
(ii) The Executive will tender his resignation
from all offices and directorships then
held with the Company; Executive, however,
shall not be required to tender his
resignation from the Board of Directors of
the Company.
(iii) The Executive will execute a release
acceptable to the Company of all liability
of the Company, and its directors,
officers, shareholders, employees, agents
and attorneys, to the Executive in
connection with or arising out of his
employment with the Company, except with
respect to any Severance Payments under
Sections 6(b) or 6(d) which may be payable
to him under the terms of the Agreement.
(iv) The representations and warranties
contained herein and the Executive's
obligations under Sections 5(d), 7, 8, 9
and 15 through 18 shall survive termination
of the Employment Period and the expiration
of this Agreement.
6. Compensation Upon Termination. Upon the occurrence of any of
the events described Section 5(a)(i) through 5(a)(v) of this Agreement, the
Executive shall be entitled, unless otherwise provided herein, to the following
remuneration in respect of such Termination (the "Severance Payments") for the
period of time specified therein (the "Severance Period"):
(a) Death. If the Executive's employment shall be
terminated pursuant to Section 5(a)(i), the Company shall pay the
Executive's personal representative his Salary payable pursuant to
Section 4(a) through the Date of Termination. At the
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Executive's own expense, the Executive's dependents shall also be entitled to
any continuation of health insurance coverage rights under any applicable law.
(b) Disability. If the Executive's employment shall be terminated
by reason of disability pursuant to Section 5(a)(ii), the Executive shall
receive his Salary payable pursuant to Section 4(a) up to the Date of
Termination and for 30 days thereafter; provided that payments so made to the
Executive during the disability shall be reduced by the sum of the amounts, if
any, payable to the Executive at or prior to the time of any such payment under
any disability benefit plan of the Company. At the Executive's own expense, the
Executive and his dependents shall also be entitled to any continuation of
health insurance coverage rights under any applicable law.
(c) Cause. If the Executive's employment shall be terminated for
Cause pursuant to Section 5(a)(iii) hereof, the Company shall pay the Executive
his Salary then payable pursuant to Section 4(a) through the Date of
Termination. At the Executive's own expense, the Executive and his dependents
shall also be entitled to any continuation of health insurance coverage rights
under any applicable law.
(d) Voluntary Resignation. If the Executive terminates his
employment with the Company pursuant to Section 5(a)(v) hereof, the Company
shall have no obligation to compensate the Executive following the Date of
Resignation, except for the payment of accrued and unpaid salary pursuant to
Section 4(a) through the Date of Resignation. In any event, at the Executive's
own expense, the Executive and his dependents shall be entitled to any
continuation of health insurance coverage rights under any applicable law.
(e) Termination Without Cause by Company. If the Company
terminates Executive's employment with the Company pursuant to Section 5(a)(iv),
the Company shall continue to pay to Executive all Salary payable pursuant to
Section 4(a), as Severance Payments through a period ending twelve (12) months
following the Date of Termination provided the Executive was employed for twelve
(12) months previous to termination. In addition for the period that the
Severance Payments are being paid to the Executive, the Executive and the
Executive's family shall be entitled to receive welfare plan benefits (other
than continued group long-term disability coverage) generally available to
executives of the Company with comparable responsibilities or positions at the
same cost to the Executive as is charged to such similar executives from time to
time for comparable coverage. The Company shall have no other obligation to
compensate the Executive following the Date of Termination except as provided
herein.
(f) Any Severance Payments made pursuant to this Section 6 shall
be payable in accordance with the Company's regular payroll practices. The
obligation of the Company to make the Severance Payments to the Executive is
expressly conditioned upon the Executive complying and continuing to comply with
his obligations and covenants under Sections 5(d), 7 and 8 of this Agreement
following termination of his employment with the Company.
(g) Any Severance payments will be effective after the Executive
has completed one year of service to the Company. If the Executive does not
complete one year of service he is not entitled to any Severance.
7. Confidentiality and Non-Solicitation Covenants.
(a) Confidentiality. In addition to the agreements set forth in
Section 5(e), the Executive hereby agrees that the Executive will not, during
the Employment Period or at any time thereafter directly or indirectly disclose
or make available to any person, firm, corporation, association or other entity
for any reason or purpose whatsoever, any Confidential Information (as defined
below). The Executive agrees that, upon Termination of his employment with the
Company, all Confidential Information in his possession that is in written or
other tangible form (together with all copies or duplicates thereof, including
computer files) shall be returned to the Company and shall not be retained by
the Executive or furnished to any third party, in any form except as provided
herein; provided, however, that the Executive shall not be obligated to treat as
confidential, or return to the Company copies of any Confidential Information
that (i) was publicly known at the time of disclosure to the Executive, (ii)
becomes publicly known or available thereafter, but prior to the Date of
Termination, other than by any means in violation of this Agreement or any other
duty owed to the Company by any person or entity or (iii) is lawfully disclosed
to the Executive by a third party. As used in this Agreement the term
"Confidential Information" means: information disclosed to the Executive or
known by the Executive as a consequence of or through his relationship with the
Company, about the
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directors, officers, shareholders, customers, employees, investors,
business methods, public relations methods, organization, procedures or
finances, including, without limitation, information of or relating to
shareholder, customer or investor lists of the Company and any
affiliate.
(b) Non-Solicitation. In addition, the Executive hereby
agrees that during the Employment Period, and for a period of one (1)
year thereafter, regardless of the reason or circumstances of
Termination of employment with the Company, the Executive will not,
either on his own account or jointly with or as a manager, agent,
officer, employee, consultant, partner, joint venturer, owner or
shareholder or otherwise on behalf of any other person, firm or
corporation, (i) carry on or be engaged or interested directly or
indirectly in, or solicit, the sale or provision of services or the
development or marketing of services as offered by the Company to its
customers at the Date of Termination, (ii) endeavor directly or
indirectly to canvas or solicit in competition with Company or to
interfere with the supply of orders for goods or services from or by
any person, firm or corporation which during the Employment Period has
been or is a supplier of goods or services to Company or become an
investor in the Company or (iii) directly or indirectly solicit or
attempt to solicit away from Company any of its officers or employees
or offer employment to any person who, at any time during the six (6)
months immediately preceding the Date of Termination, is or was an
officer or employee of Company.
8. Covenant Not to Compete. The Executive agrees that during the
Employment Period he will devote full-time to the business of the Company and
not engage in any type of business which engages in the medical internet, online
pharmacy and information services or any other related businesses, including but
not limited to all aspects of the Business. Subject to such full-time
requirement and the restrictions set forth below in this Section 8 and Section
3(c) above, the Executive shall be permitted to continue his existing business
investments and activities and may pursue additional business investments;
provided that the Executive may not serve as a director or officer of any public
company resulting from such business investments if such public company is in
competition with the Company. The Executive agrees that, from the end of the
Employment Period through a one (1) year period thereafter, he shall not, within
the Protected Territory (as defined hereinafter), (i) invest in, manage, consult
or participate in any way in any other business in competition with the Business
(in either an active or passive manner), (ii) participate in or advise any
business which has business activities similar to the Business are a relevant
business segment, or (iii) act for or on behalf of any business that intends to
enter or participate in any business which has any business activities similar
to the Business, in each case unless the independent members of the Company's
Board determines that such action is in the best interests of the Company.
Notwithstanding the foregoing, the Executive may purchase stock as a stockholder
in any publicly traded company, including any company which is involved in the
development or operation of a medical internet site in the Protected Territory;
provided that the Executive does not own (together or separately or through his
affiliates) more than five percent (5%) of any company (other than the Company)
engaged in a business which is competitive with the Business of the Company
within the Protected Territory. In addition, the Executive shall not invest
(directly or indirectly) in any competitive business operating within the
Protected Territory unless the independent members of the Company's Board
determines that such an investment is in the best interests of the Company. For
purposes of this Agreement, the "Protected Territory" shall mean that area
within a one hundred (100) mile radius of the principal offices of the Company
at the Date of Termination.
Indemnity on Non-Compete. Executive hereby indemnifies the Company for any and
all liabilities that should arise from Executive's prior employments and
consulting, including necessary legal costs for Company to defend such matters.
9. Injunctive Relief and Enforcement. In the event of breach by
either party of the terms of Sections 5, 6, 7 or 8, if the non-breaching party
believes it is suffering irreparable injury, then the non-breaching party shall
be entitled to institute legal proceedings to enforce the specific performance
of this Agreement by the breaching party and to enjoin the breaching party from
any further violation of the Agreement and to exercise such remedies
cumulatively or in conjunction with all other rights and remedies provided by
law and not otherwise limited by this Agreement. The parties acknowledge,
however, that the remedies at law for any breach of the provisions of Sections
5, 6, 7 or 8 may be inadequate. In addition, in the event the covenants set
forth in Sections 5(e), 7 or 8 shall be determined by any court of competent
jurisdiction to be unenforceable by reason of extending for too great a period
of time or over too great a geographical area, by reason of being too
restrictive or expansive, or by constituting an unlawful restraint of trade in
any other respect, each such covenant shall be interpreted to extend over the
maximum period of time and over a maximum geographical area for which it may be
enforceable, and to the maximum extent in all other respects as to which it may
be enforceable, and enforced as so interpreted, all as determined by such court
in such action.
10. Notice. For the purposes of this Agreement, notices, demands
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when personally delivered when
transmitted by telecopy with
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written confirmation of transmission and receipt, three (3) days after deposit
in the U.S. mail, first class, with adequate postage thereon, or one (1) day
after delivery to an overnight air courier guaranteeing next day delivery,
addressed as follows:
If to the Executive: Xxxxxxxx X. Faux
If to the Company: xXX.xxx
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
With a copy to: Xxxxxxxxx, Xxxxxxx & Xxxxx, LLP
1600 Xxxxxxx Building
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt as provided above.
11. Severability. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect; provided, however, that if any one or more of the terms
contained in Sections 5(e), 7 or 8 hereto shall for any reason be held by any
court of competent jurisdiction to be unenforceable by reason of extending for
too great a period of time or over too great a geographical area, by reason of
being too restrictive or expansive, or by constituting an unlawful restraint of
trade in any other respect, then such covenant shall not be deleted but shall be
reformed and constructed in a manner to enable it to be enforced to the extent
compatible with applicable law.
12. Assignment. This Agreement may not be assigned by the
Executive, but may be assigned by the Company to any successor to its business
and will inure to the benefit and be binding upon any such successor.
13 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
14. Headings. The headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
15. Choice of Law. This Agreement shall be construed, interpreted
and the rights of the parties determined in accordance with the laws of the
State of Georgia (without reference to the choice of law provisions of Georgia),
except with respect to matters of law concerning the internal corporate affairs
of any corporate entity which is a party to or the subject of this Agreement,
and as to those matters the law of the jurisdiction under which the respective
entity derives its powers shall govern.
16. Dispute Resolution. Absent any irreparable injury being
suffered by the Company entitling the Company to seek injunctive relief against
the Executive pursuant to Section 9 hereof, in the event there shall be a
dispute among the parties arising out of or relating to this Agreement, or the
breach thereof, the parties agree to the following procedures:
(a) Within thirty days after notice from a party of any
dispute, the parties shall meet and attempt to resolve such dispute
informally with or without a mediator as the parties mutually agree;
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(b) If the parties are unable to resolve the dispute
informally, then either party may institute a lawsuit in the federal or
state courts in Gwinnett County, Georgia. The parties agree that the
federal and state courts of Gwinnett County, Georgia shall have sole
jurisdiction over such disputes and each parties expressly consents to
the personal jurisdiction of such courts and expressly waives all
defenses of lack of personal jurisdiction and inconvenient forum.
17. Entire Agreement. This Agreement contains the entire agreement
and understanding between the Company and the Executive with respect to the
employment of the Executive by the Company as contemplated hereby, and no
representations, promises, agreements or understandings, written or oral, not
herein contained shall be of any force or effect. This Agreement shall not be
changed unless in writing and signed by both the Executive and the Board of the
Company.
18. Board Approval. In any case in which this Agreement provides
for the approval, review or determination of the Board in connection with the
Executive's compensation, benefits, termination or compliance with restrictive
covenants herein expressed, then such approval, review or determination shall be
deemed a "Director's conflicting interest transaction", subject to the
procedures required by O.C.G.A. ss. 14-2-860 et seq.
19. The Executive's Acknowledgment. The Executive acknowledges he
has had the opportunity to consult with independent counsel of his own choice
concerning this Agreement, and he has read and understands the Agreement, is
fully aware of its legal effect, and has entered into it freely based on his own
judgment.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the date and year first above written.
XXX.XXX
By: /s/ Xxxxxxx X. Xxxxx
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Title: Date:
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EXECUTIVE
/s/ Xxxxxxxx X. Faux
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Xxxxxxxx X. Faux Date:
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------------------------------------- Date:
Witness -----------------------
