EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of the 1st day of January, 1998
(the "Commencement Date") by and among Integrated Marketing
Professionals, Inc., a Nevada Corporation (hereinafter the
"Company"), and William Forhan an individual residing in Florida
("Employee");
RECITAL
WHEREAS, the Company desires to retain the services of Employee
and Employee is willing to continue employment by Company, on the
terms and subject to the conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, the parties as follows:
Section 1. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Affiliate" shall mean a corporation which, directly or
indirectly, controls, is controlled by or is under common control
with the Company, or which is a successor in interest to the
Company, and for purposes hereof, "control" shall mean the
ownership of 20% or more of the voting shares of the corporation
in question.
"Basic Salary" shall have the meaning assigned to it in Section 5
of this Agreement.
"The Business" shall mean the business conducted by the Company
in the past and on the date of execution of this Agreement,
including business Activities under investigation or in
developmental stages, all other business activities which flow
therefrom by a reasonable expansion of the present activities of
the Company, all business activities which may be developed by
the Company during the Term, and all business activities now
conducted by the Company or any Affiliate thereof or which may be
developed by the Company or such Affiliates, during the term of
this Agreement, as reasonable expansions of their present
activities.
"Commencement Date" shall be the effective date of this
Agreement, as stated on page 1.
"Confidential Information" shall include, without limitation,
trade "know-how," trade secrets, subscriber, advertiser and
customer lists, pricing policies, operational methods, methods of
doing business, technical processes, formulae, designs and design
projects, inventions, research projects, and other business
affairs of the Company or its Subsidiaries and Affiliates, which
(i) were, in the case of the Company, or is or are designed to be
used in or are or may be useful in connection with the business
of the Company or any Subsidiary or Affiliate thereof, or which,
in the case of any of these entities, results from any of the
research or development activities of any such entity, which (ii)
is private or confidential in that it is not generally known or
available to the public, except as the result of unauthorized
disclosure by or information supplied by Employee or (iii) which
gives the Company or any Subsidiary or Affiliate of the Company
an opportunity or the possibility of obtaining an advantage over
competitors who may not know or use such information or who are
not lawfully permitted to use the same.
"Employment Year" shall mean each twelve-month period, or part
thereof, during which Employee is employed hereunder, commencing
on the Commencement Date or on January I of any subsequent
calendar year, the first such subsequent Employment Year being
the twelve-month period which will begin on January 1, 1998.
"Fiscal Quarter" shall mean each four-month period, or part
thereof, during which Employee is employed hereunder, commencing
on the Commencement Date or on January I of any subsequent
calendar year, the first such subsequent Fiscal Quarter being the
four-month period which will begin on January 1, 1998.
"Incentive Bonus" shall have the meaning assigned to it in
Section 6.
"Person" shall mean any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization,
association, corporation, institution, public benefit
corporation, entity or government (whether Federal, state,
county, city, municipal or otherwise, including, without
limitation, any instrumentality, division, agency, body or
department thereof).
"Restricted Period" shall mean the term of employment of Employee
under this Agreement or any extension thereof and the twelve-
month month period thereafter, or such shorter period as may be
provided pursuant to any sections of this Agreement; provided,
however, that the Restricted Period shall terminate immediately
upon the occurrence of any termination of the employment of
Employee by the Company other than pursuant to this Agreement or
as authorized by law.
"Subsidiary" shall mean a corporation, 50% or more of the
outstanding voting shares of which is owned or controlled
directly or indirectly by the Company.
"Term" shall mean the term of employment of Employee under this
Agreement.
"Termination Date" shall have the meaning assigned to it in
Section 8.
"Termination Payment" shall have the meaning assigned to it in
Section 8.
Wherever from the context it appears appropriate, each word or
phrase stated in either the singular or the plural shall include
the singular and the plural and each pronoun stated in the
masculine, feminine or neuter gender shall include the masculine,
feminine and neuter.
Section 2. Employment and Duties of Employee.
2.1. Employment; Title, Duties. The Company hereby employs
Employee, and Employee
hereby accepts appointment as, and his election as, President and
Chief Executive Officer of the Company. The principal duty of
Employee shall be to serve in such capacities. In such
capacities, Employee shall render such services as are necessary
and desirable to protect and advance the best interests of the
Company, acting, in all instances, under the supervision of and
in accordance with the policies set by the Board of Directors.
2.2. Place of Employment. The principal place of employment of
Employee shall be 888 E. Las Olas Blvd., Suite 700, Fort
Lauderdale, Florida, 33301, or such other location as is
consented to by Employee and the Company. It is however
distinctly understood and agreed that Employee may be required in
connection with the performance of his duties, to work from time
to time at other locations designated by the Board of Directors
or as required in connection with the Business of the Company.
When required to travel to and/or spend time at such other
locations, Employee's reasonable traveling and temporary living
expenses shall be reimbursed to him by the Company, upon his
submittal of detailed written vouchers, supported by appropriate
documentation and subject to the general reimbursement policies
of the Company with respect to executive officers. Employee may
not be assigned duties that would require Employee to change his
principal residence to a location outside the state of Florida.
2.3. Performance of Duties. Employee shall devote his full
working time and efforts to the performance of his duties as an
executive of the Company and to the performance of such other
duties as are assigned him from time to time by the Board of
Directors of the Company. Employee shall not engage in or become
employed, directly or indirectly, in the commercial or
professional business of any other Person, without the prior
written consent of the Board of Directors of the Company, nor
shall he act as a consultant to or provide any services to,
whether on a remunerative basis or otherwise, the commercial or
professional business of any other Person, without such written
consent, which, in both instances, may be given or withheld by
the Board of Directors in its absolute discretion. Attention to
Employee's personal investments shall not be deemed to violate
this Subsection to the extent such attention does not constitute
the conduct of a separate business.
2.4. Services to the Company and/or its Affiliates. During the
term of this Agreement, it is understood that Employee may be
requested from time to time to provide assistance or consultative
or other services to, or to act temporarily as an Executive of an
Affiliate or Subsidiary of the Company. Employee shall perform
such services and, if elected as an officer or director of any
such other company, shall hold such office (and discharge its
duties) without additional compensation other than the
compensation set forth in this Agreement. During the term of
this Agreement, Employee shall also accept election or
appointment, and serve, during all or any part of the Term, as an
officer and director of any Subsidiary of the Company, and
perform the duties appropriate thereto, without additional
compensation other than as set forth in this Agreement.
Section 3. Term of Employment
The employment of Employee pursuant to this Agreement shall
commence as of the Commencement Date and end on the earlier to
occur of (i) January 1, 2008, or (ii) the first date on which
such employment is terminated in accordance with Section 10
hereof (the "Termination Date").
Section 4. Compensation and Benefits.
The Company shall pay Employee as compensation for all of the
services to be rendered by him hereunder during the Term, and in
consideration of the various restrictions imposed upon Employee
during the Term and the Restricted Period, and otherwise under
this Agreement, the Basic Salary and other benefits as provided
for and determined to Sections 5 to 10, inclusive, of this
Agreement.
Section 5. Basic Salary.
The Company shall pay Employee, as compensation for all of the
services to be rendered hereunder by him during the Term a salary
of one hundred ninety-nine thousand dollars ($199,000) per year
(the "Basic Salary"), payable in accordance with the regular
payroll practices of the Company for executives, less such
deductions or amounts as are required to be deducted or withheld
by applicable laws or regulations and less such other deductions
or amounts, if any, as are authorized by Employee. Such Basic
Salary may be increased but not decreased, from time to time in
the sole discretion of the Board of Directors.
Section 6. Incentive Bonus.
6.1. Obligation to Pay Incentive Bonus. Employee shall be
eligible to receive as additional compensation, 30 days after the
day the Board of Directors approves interim financial statements
for the last-ended Fiscal Quarter, a payment equal to five
percent (5%) of the Company's pre-tax net income for the last-
ended Fiscal Quarter for each Fiscal Quarter during the term be
after December 31, 1996 (the "Incentive Bonus"). It is the
intention of the parties that Employee's right to receive
Incentive Bonus payments shall be offset by an equal percentage
of pre-tax net losses, if any, realized from time to time. In
the event of a pre-tax net loss for a Fiscal Quarter, there shall
be set up an offset amount equal to five percent (5%) of such net
loss, which amount shall be deducted from, or offset against the
entirety of, the next Incentive Bonus payment to which Employee
becomes eligible. Likewise, if there are consecutive loss Fiscal
Quarters, the offset amounts shall accumulate and Employee shall
not be entitled to receive a further Incentive Bonus payment
until the entire accumulated loss amounts have been offset
against amounts earned in subsequent profitable Fiscal Quarters.
It is also the intention of the parties that Employee shall
receive the benefit of, or suffer the detriment resulting from,
any adjustment to the pre-tax net profit or loss as reported in
the final audited financial statements for each Fiscal Quarter
subject to the provisions of this Section 6. Any additions to, or
subtraction from, any Incentive Bonus payment made on the basis
of interim financial statements shall be taken into account and
used to adjust, as appropriate, the next Incentive Bonus payment
which Employee shall become entitled to receive. Notwithstanding
any such adjustment or subsequent net loss Fiscal Quarter, in no
event shall Employee be obligated to return to the Company any
amount which he shall have received in good faith pursuant to the
terms of this Subsection 6. 1, it being expressly understood and
agreed that all such amounts may only be used to offset future
Incentive Bonus payment obligations arising hereunder.
6.2. Partial Quarter Adjustment Provisions.
If, at any time during the Term, Employee is employed hereunder
for less than a full Fiscal Quarter as a result of the
termination of this Agreement (except in the case of termination
pursuant to Subsections 9.3 or 9.6 hereof), then the Incentive
Bonus in respect of such Fiscal Quarter shall be prorated by
determining the Incentive Bonus which would have been payable if
Employee had been employed for the entire Fiscal Quarter, and
multiplying the resultant Incentive Bonus by the Fiscal Quarter
Fraction. The Fiscal Quarter Fraction shall mean the number of
days in any period of less than a full Fiscal Quarter during
which Employee is employed hereunder divided by 91.
6.3. No Assignment. Employee shall have no right to assign or
give any third parties any rights in and to the Incentive Bonus,
except that his rights thereto, in the event of his death, shall
be transferred to the personal representatives of his estate.
6.4. Limitation on Payments. Employee's right to receive an
Incentive Bonus shall be determined on a quarterly basis and
shall not be subject to cumulation, nor to diminution by reason
of an excess or underage of gross business receipts in any other
Fiscal Quarter.
Section 7. Additional Benefits and Reimbursement for Expenses
7.1. Additional Benefits. The Company shall provide the
following additional benefits to Employee during the Tern:
(i) Payment of premiums on a term life insurance policy to be
maintained by the Company on Employee's life, to pay benefits in
the aggregate amount of $1 million to a beneficiary or
beneficiaries designated by Employee. It is understood that the
Company shall report the amount of premiums paid on such policy
to the Internal Revenue Service in accordance with the Internal
Revenue Code and the Regulations issued thereunder as income
payable to Employee;
(ii) Participation on an equitable basis in medical
hospitalization or accident/disability insurance plans and health
programs; and
(iii) Four (4) weeks vacation with pay in each Employment
Year comparable to that afforded other executives of the Company
and its subsidiaries. Provided however, Employee shall not be
entitled to take more than ten (10) consecutive business days as
vacation days without prior approval of the Company's Board of
Directors upon Employee's request made not less than three (3)
weeks prior to the intended vacation days, which approval shall
not be unreasonably withheld. There will be no carryover of
unused vacation time or pay from year to year. Employee shall
also be entitled to all holiday privileges regularly observed by
the Company during the Tern.
(iv) Company car shall be provided for Employee, monthly cost not
to exceed $ 1,000.
In addition, the Company, in its sole discretion, may include
Employee in any benefit plans which it now maintains or
establishes in the future for executives.
7.2. Reimbursement for Expenses. The Company shall pay or
reimburse Employee for all reasonable expenses actually incurred
or paid by him during the Term in the performance of his services
under this Agreement, upon presentation of such bills, expense
statements, vouchers or such other supporting information as the
Company may reasonably require. The Board of Directors may from
time to time require prior approval for individual expense items
in excess of pre-established aggregate amounts for a fixed period
or in excess of pre-established amounts for any type of
expenditure during any fixed period.
Section 8. Termination of Employment.
8.1 Death. If Employee dies during the Term, within sixty (60)
days of his death, the Company shall pay his designated
beneficiary an amount equal to one year's salary, in equal
payments over the next twelve months. If Employee dies during
the Term, his rights to receive his Incentive Bonus hereunder for
any Fiscal Quarter which has ended shall remain vested in his
estate, but his right to receive his Incentive Bonus for the
Fiscal Quarter in which he has died shall be prorated to the date
of his death. If Employee dies during the Term, neither Employee
nor his estate shall have any further right to receive an
Incentive Bonus except as stated hereinabove.
8.2. Disability.
8.2.1. If during the Term, Employee becomes physically or
mentally disabled, whether totally or partially, so that he is
unable to perform substantially all his services hereunder for
(i) a period of six (6) consecutive months, or (H) for shorter
periods aggregating six (6) months during any twelve (12) month
period, the Company may, at any time after the last day of the
sixth consecutive month of disability, or after the day on which
the shorter periods of disability shall have equaled an aggregate
of six (6) months, reduce compensation due Employee from that day
forward by twenty-five percent (25%). Employee's full
compensation shall be reinstated upon the Board of Directors'
determination that Employee has become able again to perform all
his services hereunder. If, during the Term, Employee's
disability continues such that Employee is unable to perform
substantially all his services hereunder for (i) a period of nine
(9) consecutive months, or (ii) for shorter periods aggregating
nine (9) months during any twelve (12) month period, the Company
may, at any time after the last day of the ninth consecutive such
month, or after the last day on which the shorter periods of
disability shall have equaled an aggregate of nine (9) months,
terminate Employee's employment by written notice to him. The
date on which Company sends written notice of termination under
this Subsection 8.2 shall be the Termination Date hereunder. In
case of any dispute as to whether or not Employee is disabled
within the meaning of this Subsection 8.2, the determination of
disability is to be made by a licensed physician selected by the
Board of Directors of the Company and acceptable to Employee, in
his reasonable judgment, which physicians decision shall be final
and binding on the parses hereto. In the event Employee's
employment is terminated pursuant to this Subsection 8.2, the
Company shall pay him an amount equal to all compensation
remaining unpaid at the time of the Termination Date plus any
compensation that would accrue to Employee through the end of the
month of the Termination Date. If Employee's employment is
terminated under this Subsection 8.2, his right to receive his
Incentive Bonus hereunder for any Fiscal Quarter which has ended
shall remain vested, but his right to receive his Incentive Bonus
for the Fiscal Quarter in which he is terminated shall be
prorated to the Termination Date, as provided in Subsection 6.2,
and Employee shall have no right to receive further Incentive
Bonus payments thereafter.
8.2.2. The Company shall maintain a disability insurance
policy for the benefit of Employee in the amount of $150,000
annually.
8.3. Termination for Cause. If Employee is convicted of or
indicted for an offense involving (i) fraud, (ii) embezzlement,
or (iii) any other crime involving moral turpitude, or if
Employee commits (iv) gross or willful neglect of duty, (v) a
breach of any of the material provisions of this Employment
Agreement, on his part to be performed (including breach of the
representations and warranties of Section 9), (vi) such conduct
as results or as is likely to result in substantial damage to the
reputation of the Company, or any of its Subsidiaries or
Affiliates, or (vii) if Employee declines to follow any
significant instruction adopted by the Board of Directors of the
Company and communicated to Employee, and if Employee adheres to
persistent refusal or neglect to follow such instructions or
policy, the Company may at any time thereafter terminate
Employee's employment hereunder by written notice to him
effective immediately and the date of the notice shah be the
Termination Date hereunder. Any such termination shall be deemed
to be termination for cause, for purposes of this Agreement. If
Employee's employment is terminated for cause hereunder, then
Employee shall be entitled to receive only the following
payments: any portion of his Basic Salary accrued to the date of
such termination and not theretofore paid to him- and any
Incentive Bonus to which he is entitled for any completed Fiscal
Quarter under this contract which has not theretofore been paid
to him; plus reimbursement for any expenses properly incurred by
Employee, and supported by appropriate vouchers, which expenses
have been incurred prior to the date of such termination and
which have not theretofore been reimbursed. Except as set forth
in the immediately preceding sentence, all of Employee's rights
to compensation hereunder shall be terminated, in the event of
termination for cause, as of the Termination Date.
8.4. Constructive Termination of Employee. In the event the
Company removes Employee from the position of President and Chief
Executive Officer, or if Employee is removed as a Director of the
Company without his consent (or fails to be re-elected at any
meeting of the Board of Directors of the Company held for the
purpose of electing or re-electing Directors of the Company) or
substantially changes his duties or his reporting responsibility
to the Board of Directors under Section 2. 1, the employment of
Employee, at his option, exercisable by written notice given to
the Company at any time within sixty (60) days following such
event (or failure to re-elect) (time of notice being deemed to be
of the essence), shall be deemed to have been constructively
terminated by the Company hereunder, as of the date of Employee's
notice, provided, however, that such constructive notice shall
not be deemed a breach by the Company of its obligations under
this Agreement and further provided, however, that termination
for cause pursuant to Subsection 8.3 shall make the provisions of
this Subsection 8.4 inapplicable. The date of such written
notice shall be deemed the Termination Date hereunder.
If Employee's employment is terminated under this Subsection 8.4,
and the Termination Date is within four years of the Commencement
Date, Employee shall receive, within thirty (30) days of such
written notice to the Company, a Termination Payment, which shall
be determined according to the following schedule: (i) if the
Termination Date hereunder is within one year of the Commencement
Date, the Termination Payment shall be two million dollars
($2,000,000); (ii) if the Termination Date is within two years of
the Commencement Date, the Termination Payment shall be one
million eight hundred thousand dollars ($1,800,000); (ii) if the
Termination Date is within three years of the Commencement Date,
the Termination Payment shall be one million six hundred thousand
dollars ($1,600,000); (iv) if the Termination Date is within four
years of the Commencement Date, the Termination Payment shall be
one million four hundred thousand dollars ($1,400,000); and so
forth. Additionally, Employee shall continue to receive the
additional benefits provided in Subsection 7.1 for a period of
two (2) years from the Termination Date.
If Employee's employment is terminated under this Subsection 8.4,
and the Termination Date is later than four years after the
Commencement Date, Employee shall receive an amount equal to his
aggregate Base Salary for two (2) years following the date of
such Constructive Termination, or an amount equal to his
aggregate Base Salary through the end of the Term whichever is
the lesser amount, and Employee shall continue to receive the
additional benefits provided in Subsection 7.1 during the period
he is entitled to receive Base Salary pursuant to the provisions
of this Subsection 8.4.
In the event of the Constructive Termination of Employee's
Employment pursuant to this Section 8.4, Employee's right to
receive an Incentive Bonus for each Fiscal Quarter completed
during the period of such continued Base Salary payments shall
remain in effect, and Employee's right to remove an Incentive
Bonus on account of the year in which his employment terminated
by virtue of Constructive Termination shall be prorated to the
date of such termination.
8.5. Other Termination of Employment by the Company. In the
event the Company terminates the employment of Employee hereunder
other than pursuant to any of the prior provisions hereof without
Employee's consent, Employee shall be deemed to have been
constructively terminated by the Company, and such termination
shall be subject to the provisions of Subsection 8.4.
8.6. Other Termination of Employment by Employee If Employee
quits his employment (other than as authorized under Subsection
8.4 hereof), he shall be deemed to have been terminated by the
Company for cause and shall be subject to the provisions of
Subsection 8.3 hereof.
Section 9. Representations and Warranties by Employee.
Employee hereby represents and warrants, the same being part of
the essence of this Agreement, that, as of the Commencement Date,
he is not a party to any agreement, contract or understanding,
and no other facts or circumstances exist, which would in any way
restrict or prohibit him from undertaking or performing any of
his obligations under this Agreement. The foregoing
representation and warranty shall remain in effect throughout the
Term.
Section 10. Confidential Information and Proprietary
Interests.
10.1. Acknowledgment of Confidentility. Employee understands and
acknowledges that he may obtain Confidential Information in the
perfomance of his services. Employee further acknowledges that
the services to be rendered by him are of a special, unique and
extraordinary character and that, in connection with such
services, he will have access to Confidential Information vital
to the Company's, its Subsidiaries' and Affiliates' business and
perhaps vital to the business of the Company. Accordingly,
Employee agrees that he shall not, either during the Term or at
any time thereafter, (i) use or disclose any such Confidential
Information outside the Company, and its Subsidiaries and
Affiliates- (ii) publish any works, speeches or articles with
respect thereto; or (iii), except as required in the proper
performance of his services hereunder, remove or aid in the
removal from the premises of the Company, or its Subsidiaries or
Affiliates, of any Confidential Information or any property or
material relating thereto.
The foregoing confidentiality provisions shall cease to be
applicable to any Confidential Information which becomes
generally available to the public (except by reason of or in
consequence of a breach by Employee of his obligations under this
Section 10).
In the event Employee is required by law or a court order to
disclose any such Confidential Information, he shall promptly
notify the Company of such requirement and provide the Company
with a copy of any court order or of any law which in his opinion
requires such disclosure and, if the Company so elects, permit
the Company an adequate opportunity, at its own expense, to
contest such law or court order.
10.2. Delivery of Material. Employee shall promptly, and
without charge, deliver to the Company on the termination of his
employment hereunder, or at any other time the Company may so
request, all memoranda, notes, records, reports, manuals,
computer disks, videotapes, drawings, blueprints and other
documents (and all copies thereof) relating to the business of
the Company, and its Subsidiaries and Affiliates, and all
property associated therewith, which he may then possess or have
under his control.
10.3. Customer Lists. Employee acknowledges that (i) all
fists of suppliers, advertisers, customers and vendors of the
Company or of its Subsidiaries or Affiliates developed during the
course of Employee's employment and/or by the Company are and
shall be the sole and exclusive property of the Company, its
Subsidiaries or Affiliates, as the case may be, and Employee
further acknowledges and agrees that he neither has nor shall
have any personal right, title or interest therein; (ii) that
such lists are and must continue to be confidential- and (iii)
that such lists are not readily accessible to competitors of the
Company or its Subsidiaries or Affiliates.
10.4. Ideas, Programs, Etc. If during the Term, Employee
invents or develops any ideas, programs, formats, software
systems or the likes, source codes, proprietary codes or the
like, relating to or useful in connection with the Business of
the Company, the same are and shall remain the property of the
Company, and he will promptly deliver all copies of the same to
the Company, assign his interest therein to the Company and
execute such documents as the Company's counsel may request to
convey title thereto to the Company including, but not limited to
patent applications, copyright applications, trademark
Applications and the like. Employee shall not be entitled to any
compensation, other than as provided in this Agreement, for
carrying out his obligations to the Company under Subsection 10.4
or any other Subsection of this Section 10.
Section 11. Non-Competition Provisions.
Employee agrees that he will not, during the Restricted Period,
compete directly or indirectly with the business of the Company.
The phrase "compete directly or indirectly with the business of
the Company" shall be deemed to include, without limitingting the
generality thereof (1) engaging or having a material interest,
directly or indirectly, as owner, employee, officer, director,
partner, sales representative, stockholder, capital investor,
lessor, renderer of consultation services or advise, either alone
or in association with another or others, in the opmfion of any
aspect of any type of business or enterprise competitive with the
business or operation of the Company, (2) soliciting any of the
employees of the Company to leave the employ of the Company, or
so soliciting any employee of any Subsidiary or Affiliate of the
Company; (3) soliciting any of the employees of the Company to
become employees of any other Person, or so soliciting any
employee of any Subsidiary or Affiliate of the Company; or (4)
soliciting any customer or supplier of the Company or any
Affiliate or Subsidiary of either of them with respect to their
business. Similarly, Employee shall not raid, entice or induce
any Person who on the Termination Date is, or within one (1) year
immediately preceding the Termination Date was, a customer or
supplier of the Company, or any of its Subsidiaries or
Affiliates, to become a customer of any other Person for products
or services the same as, or similar to, those products and
services as from time to time shall be provided by the Company,
or any of its Subsidiaries and Affiliates, and Employee shall not
approach any Person for such purpose- nor shall Employee raid,
entice or induce any Person who on the Termination Date is, or
within one year immediately preceding the Termination Date was,
an employee of the Company or any of its Subsidiaries or
Affiliates, to become employed by any other Person, similarly,
Employee shall not approach any such employee for such purpose or
authorize or knowingly approve the taking of such actions by any
other Person or assist any such other Person in taking any such
action.
The phrase "compete directly or indirectly with the business of
the Company" shall not be deemed to include an ownership interest
as an inactive investor, which, for purposes of this Agreement,
shall mean only the beneficial ownership of less than five (5%)
percent of the outstanding shares of any series or class of
securities of any competitor of the Company, which securities of
such series or class are publicly traded in the securities
market.
Section 12. Disputes and Remedies.
12.1. Waiver of Jury Trial. EMPLOYEE AND THE COMPANY HEREBY
WAIVE THE RIGHT TO A BY JURY IN THE EVENT OF ANY DISPUTE WHICH
ARISES UNDER THIS AGREEMENT.
12.2. Injunctive Relief If Employee commits a breach, or
threatens to commit a breach, of any of the provisions of Section
2 or of Sections 10 or I 1, the Company shall have the following
rights and remedies (each of which shall be independent of the
other, and shall be severally enforceable, and all of which shall
be in addition to, and not in lieu of any other rights and
remedies available to the Company):
(i) the right and remedy to have the provisions of this
Agreement specifically enforced by any court having equity
jurisdiction, it being acknowledged by Employee that any such
breach or threatened breach will or may cause irreparable injury
to the Company and that money damages will or may not provide an
adequate remedy to the Company; and
(ii) the right and remedy to require Employee to account for and
pay over to the Company all compensation profits, monies,
increments, things of value or other benefits, delivered or
received by Employee as the result of any acts or transactions
constituting a breach of any of the provisions of Section 2 or of
Sections 10 or 11 of this Agreement, and Employee hereby agrees
to account for and pay over all such compensation, profits,
monies, increments, things of value or other benefits to the
Company.
Employee specifically agrees not to object to any application
made by the Company to any court having equity jurisdiction,
seeking an injunction restraining him from committing,
threatening or continuing any violation of Section 2 or Sections
10 or 11 of this Agreement.
12.3. Partial Enforceability. If any provision contained in
Section 2 or in Section 10 or 11, or any part thereof is
construed to be invalid or unenforceable, the same shall not
affect the remainder of Employee's agreements, covenants and
undertakings, or the other restrictions which he has accepted, in
Section 2 or in Sections 10 or 11, and the remaining such
agreements, covenants, undertakings and restrictions shall be
given the fullest possible effect, without regard to the invalid
parts.
12.4 Adjustment of Restrictions. Despite the prior provisions of
this Section 12, if any covenant or agreement contained in
Sections 2, 10 or 11, or any part thereof is held by any court of
competent jurisdiction to be unenforceable because of the
duration of such provision or the geographic area covered
thereby, the court making such determination shall have the power
to reduce the duration or geographic area of such provision and,
in its reduced form such provision shall be enforceable.
12.5. Attorneys Fees and Expenses In the event that any
action, suit or other proceeding at law or in equity is brought
to enforce the provisions of this Agreement, or to obtain money
damages for the breach thereof, and such action results in the
award of a judgment for money damages or in the granting of any
injunction in favor of the Company, then all reasonable expenses,
including, but not limited to, reasonable attorneys' fees and
disbursements (including those incurred on appeal) of the Company
in such action, suit or other proceeding shall (on demand of the
Company) forthwith be paid by Employee. If such action results
in a judgment in favor of Employee, then all reasonable expenses,
including but not limited to, reasonable attorney's fees and
disbursements (including those incurred on appeal) of Employee in
such action, suit or other proceeding shall (on demand of
Employee) forthwith be paid by the Company.
12.6. Limited Enforceability . In the event that Employee
elects to terminate this Agreement pursuant to Subsection 8.4, or
the Company terminates the employment of Employee hereunder other
than pursuant to any of the provisions of this Agreement,
Employee shall be released as of the Termination Date from any
and all further restrictions pursuant to Section 2 and Section
11.
Section 13. Survival.
The provisions of Sections 10, 11, 12 and this Section 13 shall
survive termination of this Agreement and remain enforceable
according to their terms.
Section 14. Severability.
The invalidity or unenforceability of any provision of this
Agreement shall in no way affect the validity or enforceability
of any other provisions hereof
Section 15. Notices.
All notices, demands and requests required or permitted to be
given under the provisions of this Agreement shall be deemed duly
given if made in writing and delivered personally or mailed by
postage prepaid certified or registered mail, return receipt
request, accompanied by a second copy sent by ordinary mail,
which notices shall be addressed as follows:
If to the Company:
Casino Airlink, Inc.
888 East Las Olas Blvd., Suite 700
Fort Lauderdale, FL 33301
with a copy to:
Niesar & Diamond LLP
90 New Montgomery Street, 9th Floor
San Francisco, CA 94105
If to Employee:
William Forhan
888 East Las Olas Blvd., Suite 700
Fort Lauderdale, FL 33301
By notifying the other parties in writing, given as aforesaid,
any party may from time to time change its address or the name of
any person to whose attention notice is to be given, or may add
another person, to whose attention notice is to be given, in
connection with notice to any party.
Section 16. Assignment and Successors.
Neither this Agreement nor any of his rights or duties hereunder
may be assigned or delegated by Employee. This Agreement is not
assignable by the Company except to any successor in interest
which takes over all or substantially all of the business of the
Company, as it is conducted at the time of such assignment. Any
corporation into or with which the Company is merged or
consolidated or which takes over all or substantially all of the
business of Company shall be deemed to be a successor of the
Company for purposes hereof This Agreement shall be binding upon
and, except as aforesaid, shall inure to the benefit of the
parties and their respective successors and ed assigns.
Section 17. Entire Agreement and Waiver.
17.1. Integration. This Agreement contains the entire agreement
of the parties hereto on its subject matter and supersedes all
previous agreements between the parties hereto, written or oral,
express or implied, covering the subject matter hereof. No
representations, inducements, promises or agreements, oral or
otherwise, not embodied herein shall be of any force or effect.
Provided, however, that this Agreement shall not affect or
operate to reduce any benefit or compensation inuring to Employee
of a kind elsewhere provided and not expressly provided in this
Agreement, including, without limitation, any grant of Incentive
Stock Options to Employee.
17.2. No Waiver. No waiver or modification of any of the
provisions of this Agreement shall be valid unless in writing and
signed by or on behalf of the party granting such waiver or
modification. No waiver by any party of any breach or default
hereunder shall be deemed a waiver of any repetition of such
breach or default or shall be deemed a waiver of any other breach
or default, nor shall it in any way affect any of the other terms
or conditions of this Agreement or the enforceability thereof No
failure of the Company to exercise any power given it hereunder
or to insist upon strict compliance by Employee with any
obligation hereunder, and no custom or practice at variance with
the terms hereof shall constitute a waiver of the right of the
Company to demand strict compliance with the terms hereof
Employee shall not have the right to sign any waiver or
modification of any provisions of this Agreement on behalf of the
Company, nor shall any action taken by Employee, as the Vice
President of Marketing of the Company, or otherwise, reduce Ins
obligations under this Agreement.
This Agreement may not be supplemented or rescinded except by
instrument in writing signed by all of the parties hereto after
the Commencement Date. Neither this Agreement nor any of the
rights of any of the parties hereunder may be terminated except
as provided herein.
Section 18. Governing Law.
This Agreement shall be governed by and construed, and the rights
and obligations of the parties hereto enforced, in accordance
with the laws of the State of Florida.
Section 19. Headings.
The Section and Subsection headings contained herein are for
reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date written above, which shall be deemed to be the
Commencement Date.
"The Company"
INTEGRATED MARKETING PROFESSIONALS, INC.
By: /s/ William Forhan
William Forhan, President and CEO
"Employee"
/s/ William Forhan
William Forhan