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 James Muldowney, an individual residing in
Georgia ("Employee");
R E C I T A L
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.
A G R E E M E N T
NOW, THEREFORE, the parties as follows:
Section 1. As used in this Agreement, the following terms share
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 put-poses hereof, "control" shall mean the
ownership of 20% or more or 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 ot- 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 1 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 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 ten-n 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, Executive Vice President of the Company, and
President of the Subsidiary, Casino Airlink. The principal duty
of Employee shall be to serve in such capacities. In such
capacities, Employee shall tender 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 5590 Ulmerton Road, Clearwater, Florida, 34620,
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 or 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 all 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) December 31, 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 Tenn, 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 pursuant 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 fifty thousand dollars ($150,000) per year
(the "Basic Salary"), payable in accordance with the regular
payroll practices of the Company for executives, less such
deductions oi- 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 two and one-
half percent (2.5%) of the Company's pre-tax net income for the
last-ended Fiscal Quarter for each Fiscal Quarter during the term
beginning after December- 31, 1997 (the "Incentive Bonus"). It
is the intention of the parties that Employee's right to receive
Incentive Bonus payments shall be offset by ail 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 ail offset amount equal to two and one-half percent
(2.5%) of such net loss, which amount shall be deducted from, or
offset against the entirely 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 carried 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 lie 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 I
incentive Bonus payment obligations arising hereunder.
6.2. Partial Quarter Adjustment Provisions.
1f, 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 of- 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 fight 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.
Section 7. Additional Benefits and Reimbursement for Expenses.
7.1. Additional Benefits. The Company shall provide the
following additional benefits to Employee during the Term:
(i) Participation on an equitable basis in medical,
hospitalization or accident/disability insurance plans and health
programs; and
(ii) 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 riot 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 riot 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 Term, and
(iii) 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 $400,000 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, and
(iv) Company Car shall be provided for employee, monthly cost not
to exceed $500.
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 1'en-n 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, the Company shall
pay his designated beneficiary an amount equal to one year's
compensation, 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 fight 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
fight 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 (ii) 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 or 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 physician's decision shall be
final and binding on the parties 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.
8.3 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 shall be the
Termination Date hereunder. Any Such termination shall be deemed
to be termination for cause, for purposes of this Agreement. It'
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 Executive Vice
President, 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 reelecting 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 termination 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 one million five hundred
thousand dollars ($1,500,000); (ii) if the Termination Date is
within two years of the Commencement Date, the Termination
Payment shall be one million three hundred fifty thousand dollars
($1,350,000); (ii) if the Termination Date is within three years
of the Commencement Date, the Termination Payment shall be one
million two hundred thousand dollars ($1,200,000); (iv) if the
Termination Date is within four years of the Commencement Date,
the Termination Payment shall be one million fifty thousand
dollars ($1,050,000), 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
lie is entitled to receive Base Salary pursuant to the provisions
of this Subsection 8.4.
In the event or the Constructive Termination of Employee's
Employment pursuant to this Section 8.4, Employee's tight 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 fight to receive 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 others facts or circumstances exist, which would in any
way restrict or prohibit him from undertaking or performing any
or 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 Confidentiality . Employee
understands and acknowledges that he may obtain Confidential
Information in the performance 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, lie 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 1'roi-n 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
lists of suppliers, advertisers, customers and vendors of the
Company or of its Subsidiaries or Affiliates developed during the
course or 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 i-nay be, and Employee
further acknowledges and agrees that lie 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 lie 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 limiting 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 operation 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 Coi-npany 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 all 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 TRIAL 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 11, 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, derived 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 or 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:
Integrated Marketing Professionals, 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:
James Muldowney
c/o Casino Airlink
5590 Ulmerton Road
Clearwater, FL 34620
By notifying the other parties in writing, given as aforesaid,
any party may from time to time change its address or the name or
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 fights 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 permitted 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 limitations 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 his
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
meaningg or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above, which shall be deemed to be the
Commencement Date.
"The Company"
INTEGRATED MARKETING PROFESSIONALS, INC.
By: /s/ William Forhan
William Forhan
Its President and CEO
"Employee"
/s/ James Muldowney
James Muldowney