EXHIBIT 10.2
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SENIOR EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is effective as
of this 31 day of March, 2006 (the "Effective Date"), between Jupiter Marine
International Holdings, Inc. (the "Company"), whose principal place of business
is located at 3391 SE 14th Avenue, Ft. Lauderdale, Florida 33316, and Lawrence
Tierney, an individual (the "Executive"), whose address is 7848 Shoupe Rd.,
Plant City, Florida 33565.
WHEREAS, the Company desires to employ the Executive as an employee of
the Company, and the Executive desires to provide services to the Company; and
WHEREAS, the Company desires to provide a plan for compensating the
Executive in relation to the degree of his success in aiding the Company's
business and affairs and recognizing the Executive's position of high trust and
confidence;
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Company and the Executive do hereby agree as follows:
1. Recitals. The above recitals are true, correct and are herein
incorporated by reference.
2. Employment. The Company hereby agrees to employ the Executive as the
Chief Financial Officer and Chief Operating Officer. The Executive hereby
accepts such employment and agrees to perform pursuant to the terms and
conditions hereinafter set forth.
3. Authority and Power During Employment Period.
a. Duties and Responsibilities. During the term of this Agreement the
Executive shall serve as Chief Financial Officer and Chief Operating Officer of
the Company and shall have general executive and operating supervision over the
property, business and affairs of the Company, its subsidiaries and divisions,
subject to the guidelines and direction of the board of directors of the
Company.
b. Time Devoted. Throughout the term of the Agreement, the Executive
shall devote a reasonable amount of the Executive's business time and attention
to the business and affairs of the Company consistent with the Executive's
senior position with the Company, except for reasonable vacations and except for
illness or incapacity, but nothing in this Agreement shall preclude the
Executive from engaging in personal business and/or serving as a member of the
board of directors of other companies, charitable and community affairs,
provided that such activities do not interfere with the regular performance of
the Executive's duties and responsibilities under this Agreement.
4. Term. The term of employment hereunder shall be for five (5) years
(the "Term") commencing on the Effective Date as set forth above and terminating
in five (5) years, unless sooner terminated under this Agreement. The Term shall
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automatically renew every year, i.e. the Term shall be rolling and shall never
be in effect for less than five (5) years at any time while the Agreement is
effective.
5. Compensation and Benefits.
a. Salary. The Executive shall be paid a base salary (the "Base
Salary"), payable weekly, at an annual rate of no less than One Hundred Seventy
Five Thousand Dollars ($175,000) for the first year, with annual incremental
increases of the greater of: (i) the percentage increase in the Consumer Price
Index, all items, as published by the United States Department of Labor, since
the Effective Time (in the case of the first annual increase) or since the most
recent anniversary of the Effective Time (in the case of all subsequent annual
increases), or (ii) six percent (6%) of the previous year's base salary.
b. Options. The Executive shall receive Five Hundred Thousand incentive
stock options exercisable at $0.29 per share, vesting in five equal installments
over the initial Term of this Agreement and exercisable for a period of five (5)
years from the vesting date. Whether or not vested or earned, options shall be
deemed earned and become fully vested upon the termination of employment by
either the Company or Executive, except as provided under subsection 6(c) or
6(e). The Options shall be issued under the Company's 2004 Management and
Director Equity Incentive Plan.
c. Signing Bonus. Executive shall receive Three Hundred Thousand
(300,000) shares of the Company's common stock at $0.29 per share upon the
signing of this Agreement.
d. Performance Based Bonus. Executive shall be entitled to a
performance-based bonus in such amount as to be determined by the board of
directors.
e. Executive Benefits. The Executive shall be entitled to participate
in all benefit programs of the Company currently existing or hereafter made
available to executives and/or other salaried employees, as well as any other
benefit programs including pension and other retirement plans, group life
insurance, hospitalization, medical (including surgical and major medical)
insurance, health and accident insurance, director and officer insurance, sick
leave, salary continuation, stock option plans, vacation and holidays, cellular
telephone and all related costs and expenses, long-term disability, and other
fringe benefits.
f. Vacation. During each fiscal year of the Company, the Executive
shall be entitled to reasonable time and to utilize such vacation as the
Executive shall determine; provided however, that the Executive shall evidence
reasonable judgment with regard to appropriate vacation scheduling.
Notwithstanding the foregoing, Executive shall be entitled to four (4) weeks
paid vacation per year. The Executive shall be permitted to accrue vacation time
in accordance with Company policy. Upon Termination for any reason under this
Agreement, Executive shall be fully compensated for all properly accrued and
unused weeks of vacation.
g. Business Expense Reimbursement. During the Term of employment, the
Executive shall be entitled to receive proper reimbursement for all
out-of-pocket expenses incurred by the Executive (in accordance with the
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policies and procedures established by the Company for its senior executive
officers) in performing services hereunder including expenses for travel and
entertainment provided the Executive provides reasonable documentation of such
expenses.
h. Automobile Expenses. Company shall pay a monthly automobile
allowance of $750 to the Executive and will pay or reimburse Executive for all
operational expenses. So as to adequately protect the Company and Executive in
the event that Executive is involved in any accident, Company agrees to maintain
minimum automobile accident insurance coverage of $500,000 per accident, and
$1,000,000 aggregate per year. If such insurance cannot or is not directly
obtained and paid for by Company, it shall reimburse the Executive for all costs
thereof.
i. Memberships, Dues. At the discretion of the board of directors, the
Company shall provide to the Executive memberships in social, charitable or
religious organizations or clubs, which memberships shall be either in the name
of the Executive or in the name of the Company, as determined by the Executive.
j. Boat Purchase. The Executive shall have the right to purchase one of
the Company's boats each year at Company's manufacturing cost. Company will be
allowed reasonable use of Executive's boat for promotional purposes and will pay
or reimburse Executive for all operational expenses.
k. Life Insurance. Company shall provide the Executive a universal life
insurance policy with a minimum death benefit of $1,000,000. Such policy shall
be owned by the Executive, or as Executive designates, with all premiums to be
paid by Company during the term hereof. The beneficiary of such life insurance
policy shall be designated by the Executive, although nothing contained herein
shall preclude Company from obtaining any available key-man life insurance
policy, if any, that would also benefit the Company upon the Executive's death.
Such policy shall also be freely transferable to, or assumable by, Executive
upon the expiration or earlier termination of this Agreement, for any reason,
provided that Executive shall then be responsible for all future premiums due
thereon. Executive agrees to reasonably cooperate with Company in the
acquisition or retention of such policies, including the provision of all
medically necessary information, and submission to such physical examinations or
testing as may be required.
l. Relocation. In the event Executive is required to relocate for
purposes of performing his duties under this Agreement, then Company will pay
all reasonable expenses for Executive to relocate.
6. Consequences of Termination of Employment.
a. Termination as a Result of Death. In the event of the death of the
Executive during the Term of this Agreement, the Executive's employment shall
terminate as of the date of Executive's death. The Executive's Compensation and
Benefits as provided for in Section 5 earned up to the last day of the month of
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the Executive's death shall be paid to the Executive's designated beneficiary,
or, in the absence of such designation, to the estate or other legal
representative of the Executive, and all Compensation and Benefits under Section
5 shall continue to be paid in the same manner as provided in this Section for a
period of one (1) year following Termination as a Result of Death. The Company
shall also be obligated to pay to the Executive's estate or heirs, as the case
may be, such earned but unpaid bonuses from previous years. Except as set forth
herein, other death benefits will be determined in accordance with the terms of
the Company's benefit programs and plans. All previously held stock options,
rights and awards made to the Executive shall automatically become fully vested
as of the date of death.
b. Termination as a Result of Disability.
i. In the event of the Executive's disability, as hereinafter
defined, the Executive shall be entitled to compensation in accordance
with the Company's disability compensation practice for senior
executives, including any separate arrangement or policy covering the
Executive, but in all events the Executive shall continue to receive
the Compensation and Benefits under Section 5 of this Agreement for a
period of one (1) year subsequent to Termination as a Result of
Disability which shall be paid in the same manner as that preceding
Termination as a Result of Disability. The Company shall be obligated
to pay to the Executive all earned but unpaid bonuses from previous
years. Any amounts provided for in this Section 6.b shall not be offset
by other long-term disability benefits provided to the Executive by the
Company.
ii. "Disability," for the purposes of this Agreement, shall be
deemed to have occurred in the event (A) the Executive is unable by
reason of sickness or accident, to perform the Executive's duties under
this Agreement for an aggregate of 180 days in any twelve-month period
or (B) the Executive has a guardian of the person or estate appointed
by a court of competent jurisdiction. Termination as a result of
Disability shall be deemed to have occurred upon the first day of the
month following the determination of Disability as defined in the
preceding sentence.
Anything herein to the contrary notwithstanding, if, following
a Termination as a result of Disability as provided in the preceding
paragraph, the Executive becomes re-employed, whether as an Executive
or a consultant to the Company, any salary, annual incentive payments
or other benefits earned by the Executive from such employment shall
not offset any salary continuation due to the Executive hereunder
commencing with the date of re-employment.
c. Termination by the Company for Cause.
i. Nothing herein shall prevent the Company from terminating
Employment for "Cause," as hereinafter defined. The Executive shall
continue to receive salary only for the period ending with the date of
such Termination as provided in this Section 6.c, although all earned
but unpaid bonuses from past years performance will continue to be paid
to Executive. Any rights and benefits the Executive may have in respect
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of any other compensation shall be determined in accordance with the
terms of such other compensation arrangements or such plans or
programs.
ii. "Cause" shall mean and include those actions or events specified
below in subsections (A) through (D) to the extent the same occur, or
the events constituting the same take place, subsequent to the date of
execution of this Agreement: (A) Committing or participating in an
injurious act of fraud or embezzlement against the Company; (B)
engaging in a criminal enterprise involving moral turpitude; (C)
conviction of an act or acts constituting a felony of a crime of
violence, fraud or dishonesty under the laws of the United States or
any state thereof; or (D) any assignment of this Agreement by the
Executive in violation of Section 15 of this Agreement. Anything herein
to the contrary notwithstanding, the employment of Executive shall not
be terminable by the Company for Cause if the grounds for such
termination includes (i) the result of bad judgment or poor economic
results on the part of the Executive, (ii) any act or omission believed
by Executive in good faith to have been in or not opposed to the
interests of the Company, or (iii) any act or omission in respect of
which a determination could properly be made that Executive met the
applicable standard of conduct described for indemnification or
reimbursement or payment of expenses under the Articles of
Incorporation or Bylaws of the Company or the laws of the State of
Florida or the directors' and officers' liability insurance of the
Company, in each case as in effect at the time of such act or omission.
iii. Notwithstanding anything else contained in this Agreement, this
Agreement will not be deemed to have been terminated for Cause unless
and until there shall have been delivered to the Executive a notice of
termination stating that the Executive committed one of the types of
conduct set forth in this Section 6.c and specifying the particulars
thereof, and the Executive shall be given a sixty (60) day period to
cure such conduct, if possible.
d. Termination by the Company Other than for Cause, Death or
Disability.
i. The Company may terminate the Executive's employment for whatever
reason it deems appropriate provided, however, that unless such
termination is based on Cause, as provided in Section 6.c. above, the
Company may terminate this Agreement only upon giving three (3) months'
prior written notice. During such three (3) month period preceding
termination, the Executive will have all substantial rights and shall
be entitled to the same access and privileges to Company property as he
was preceding the notice of termination, and the Company shall continue
to provide all Compensation and Benefits under Section 5 of this
Agreement to the Executive. The Company shall also be obligated to pay
to the Executive such amount of Bonus equal to the amount received for
the prior year or if no prior bonus an amount equal to $50,000, as well
as all earned but unpaid bonuses from previous years.
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ii. The Executive will continue to receive all Compensation and
Benefits under Section 5 of this Agreement for a period of three (3)
years following termination. The Executive shall continue to receive
Salary at the same rate and in the same form and manner as that in the
year of termination. The Executive shall continue to receive all
Benefits in the same form and manner as that in the year of
termination.
iii. The Executive, at his option, may require the Company to make a
lump sum payment at the time of termination of (a) all or a portion of
his entitled Compensation based on this Section 6.d, (b) all or a
portion of his entitled Benefits based on this Section 6.d, or (c) any
combination thereof. Such lump sum payment will be at full face value
and not subject to present value calculation.
iv. The foregoing notwithstanding, the Executive's employment may
not be terminated by the Company for any reason other than pursuant to
Section 6.a, Section 6.b and/or Section 6.c during the first five (5)
years of this Agreement.
e. Voluntary Termination. In the event the Executive terminates the
Executive's employment on the Executive's own volition (except as provided in
Section 6.f and/or Section 6.g) prior to the expiration of the Term of this
Agreement, such termination shall constitute a Voluntary Termination. The
Company shall also be obligated to pay to the Executive all earned but unpaid
bonuses from past years performance.
f. Constructive Termination of Employment. If the Executive so elects,
a Termination by the Company Other than for Cause, Death or Disability under
Section 6.d shall be deemed to have occurred upon the occurrence of one or more
of the following events without the express written consent of the Executive:
i. a significant change in the nature or scope of the authorities,
powers, functions, duties or responsibilities attached to Executive's
position as described in Section 3;
ii. five percent (5%) reduction in the Executive's base salary;
iii. a material breach of the Agreement by the Company;
iv. a material reduction of the Executive's benefits under any
Executive benefit plan, program or arrangement (for Executive
individually or as part of a group) of the Company as then in effect or
as in effect on the Effective Date of the Agreement, which reduction
shall not be effectuated for similarly situated Executives of the
Company;
v. by a successor company to assume the obligations under the
Agreement; or
vi. a change in the Executive principal office to a location outside
the State of Florida.
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Anything herein to the contrary notwithstanding, the Executive shall give
written notice to the Board of Directors of the Company that the Executive
believes an event has occurred which would result in a Constructive Termination
of the Executive's employment under this Section 6.f, which written notice shall
specify the particular act or acts, on the basis of which the Executive intends
to so terminate the Executive's employment, and the Company shall then be given
the opportunity, within fifteen (15) days of its receipt of such notice to cure
said event, provided, however, there shall be no time period permitted to cure a
second or subsequent occurrence under this Section 6.f (whether such second
occurrence be of the same or a different event specified in subsections (i)
through (vi) above).
g. Termination Following a Change of Control.
i. In the event that a "Change in Control" or an "Attempted Change
in Control" as hereinafter defined, of the Company shall occur at any
time during the Term hereof, the Executive shall have the right to
terminate the Executive's employment under this Agreement upon thirty
(30) days written notice given at any time within one year after the
occurrence of such event, and such Termination of the Executive's
employment with the Company pursuant to this Section 6.g.i, then, in
any such event, such Termination shall be deemed to be a Termination by
the Company Other than for Cause, Death or Disability and the Executive
shall be entitled to such Compensation and Benefits as set forth in
Subsection 6.d of this Agreement.
ii. For purposes of this Agreement, a "Change in Control" of the
Company shall mean a change in control (A) as set forth in Section 280G
of the Internal Revenue Code or (B) of a nature that would be required
to be reported in response to Item 5.01 of the current report on Form
8K, as in effect on the date hereof, pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act"); provided
that, without limitation, such a change in control shall be deemed to
have occurred at such time as:
(A) any "person", other than the Executive, (as such term is
used in Section 13(d) and 14(d) of the Exchange Act) is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company
representing thirty percent (30%) or more of the combined voting
power of the Company's outstanding securities then having the right
to vote at elections of directors; or,
(B) the individuals who at the effective date of the Agreement
constitute the Board of Directors cease for any reason to constitute
a majority thereof unless the election, or nomination for election,
of each new director was approved by a vote of at least two thirds
of the directors then in office who were directors at the
commencement of the Agreement; or
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(C) there is a failure to elect such number of directors as
would constitute a majority of the Board of Directors candidates
nominated by the Company to the Board of Directors; or
(D) the business of the Company for which the Executive's
services are principally performed is disposed of by the Company
pursuant to a partial or complete liquidation of the Company, a sale
of assets (including stock of a subsidiary of the Company) or
otherwise.
Anything herein to the contrary notwithstanding, this Section 6.g.ii will not
apply where the Executive gives his explicit written waiver stating that for the
purposes of this Section 6.g.ii a Change in Control shall not be deemed to have
occurred. The Executive's participation in any negotiations or other matters in
relation to a Change in Control shall in no way constitute such a waiver which
can only be given by an explicit written waiver as provided in the preceding
sentence.
An "Attempted Change in Control" shall be deemed to have
occurred if any substantial attempt, accompanied by significant work efforts and
expenditures of money, is made to accomplish a Change in Control, as described
in subparagraphs (A), (B), (C) or (D) above whether or not such attempt is made
with the approval of a majority of the then current members of the Board of
Directors.
iii. In the event that, within twelve (12) months of any Change in
Control of the Company or any Attempted Change in Control of the
Company, the Company terminates the employment of the Executive under
this Agreement, for any reason other than for Cause as defined in
Section 6.c, or the Executive's employment is constructively terminated
as defined in Section 6.g.iv, then, in any such event, such Termination
shall be deemed to be a Termination by the Company Other than for
Cause, Death or Disability and the Executive shall be entitled to such
Compensation and Benefits as set forth in Subsection 6.d of this
Agreement.
iv. For purposes of this Section 6.g, the Executive's employment
shall be deemed constructively terminated in the event one or more of
the following events occurs without the express written consent of the
Executive:
(A) Significant change in the nature or scope of the
authorities, powers, functions, duties or responsibilities attached
to Executive's position as described in Section 3; or
(B) A five percent (5%) reduction in the Executive's salary
below the salary in effect immediately prior to such reduction or a
reduction in the target bonus participation under Section 5.d as a
percentage of salary; or
(C) Material breach of the Agreement by the Company; or
(D) Material reduction of the Executive's benefits under any
Executive benefit plan, program or arrangement (for Executive
individually or as part of a group) of the Company as then in effect
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or as in effect on the effective date or the Agreement, which
reduction shall not be effectuated for similarly situated Executives
of the Company; or
(E) Failure by a successor company to assume the obligations
under the Agreement; or
(F) Change in the Executive's principal office location.
v. Anything in this Section 6.g to the contrary notwithstanding, in
no event will any action or non-action by the Executive at any time
prior to the first anniversary date of the applicable Change in Control
or Attempted Change in Control (including any action or non-action
prior to the effective date of this Agreement) be deemed consent to any
of the events described in this Section 6.g.
vi. Anything herein to the contrary notwithstanding, in the event
the circumstances giving rise to an Attempted Change in Control are
included in those circumstances giving rise to an actual Change in
Control the twelve (12) month period under this Section 6 will be
deemed to have recommenced on the date the actual Change in Control
occurred.
vii. If Executive, as a result of a Change in Control as defined
herein, shall incur any legal expenses as a result of such Change in
Control, the Executive shall be entitled to recover all reasonable
attorney's fees incurred by Executive.
h. Related Termination Provisions.
i. The Company shall, upon demand, pay Executive for all legal fees
and expenses of the Executive incurred as a result of Termination
(including all such fees and expenses, if any, incurred in contesting
or disputing any such Termination, in seeking to obtain or enforce any
right or benefit provided by this Agreement, or in interpreting this
Agreement).
ii. In the event of Termination, the Executive shall be under no
obligation to seek other employment and there shall be no offset
against any amounts due the Executive under this Agreement on account
of any remuneration attributable to any subsequent employment that the
Executive may obtain (any amounts due under this Agreement are in the
nature of severance payments, or liquidated damages, or both, and are
not in the nature of a penalty).
iii. Unless the Executive is Terminated for Cause, Death or
Disability, the Company shall maintain in full force and effect, for
the Executive's continued benefit for a period to extend three (3)
years from the date of termination, all active and retirement Insurance
Benefits and other benefit programs or arrangements in which he was
entitled to participate immediately prior to the termination provided
that continued participation is possible under the general terms and
provisions of such plans and programs. In the event that participation
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in any such plan or program is barred, the Company shall arrange to
provide the Executive with benefits substantially similar to those,
which he is entitled to receive under such plans and programs.
iv. Unless the Executive is Terminated for Cause which is not
contested by the Executive, the Company shall allow the Executive at
Company expense, to continue to utilize the services of the Company's
certified public accountants, and/or another accountant or attorney
(including fees and expenses through all appeals) of his choice for
assistance in enforcing this Agreement and preparation of his tax
returns for the year following termination of employment. The Company
hereby waives any potential conflict as a result of such
representation.
7. Covenant Not to Compete and Non-Disclosure of Information.
a. Covenant Not to Compete. The Executive acknowledges and recognizes
the highly competitive nature of the Company's business and the goodwill,
continued patronage, and specifically the names and addresses of the Company's
Clients (as hereinafter defined) constitute a substantial asset of the Company
having been acquired through considerable time, money and effort. Accordingly,
in consideration of the execution of this Agreement, the Executive agrees to the
following:
i. That until a termination occurs for any reason under this
Agreement and for a one year period thereafter (as herein defined) and
within the Restricted Area (as hereinafter defined), the Executive will
not, individually or in conjunction with others, directly or
indirectly, engage in any Business Activities (as hereinafter defined),
whether as an officer, director, proprietor, employer, partner,
independent contractor, investor (other than as a holder solely as an
investment of less than 1% of the outstanding capital stock of a
publicly traded corporation), consultant, advisor, agent or otherwise.
ii. That until a termination occurs for any reason under this
Agreement and for a one year period thereafter, and within the
Restricted Area, the Executive will not, directly or indirectly,
compete with the Company by soliciting, inducing or influencing any of
the Company's clients which have a business relationship with the
Company at the time during the Restricted Period to discontinue or
reduce the extent of such relationship with the Company.
iii. That until a termination occurs for any reason under this
Agreement and for a one year period thereafter, and within the
Restricted Area, the Executive will not (A) directly or indirectly
recruit, solicit or otherwise influence any Executive or agent of the
Company to discontinue such employment or agency relationship with the
Company, or (B) employ or seek to employ, or cause or permit any
business which competes directly or indirectly with the Business
Activities of the Company (the "Competitive Business") to employ or
seek to employ for any Competitive Business any person who is then (or
was at any time within six (6) months prior to the date Executive or
the Competitive Business employs or seeks to employ such person)
employed by the Company.
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iv. That until a termination occurs for any reason under this
Agreement and for a one year period thereafter, the Executive will not
interfere with, or disrupt or attempt to disrupt any past, present or
prospective relationship, contractual or otherwise, between the Company
and any customer, Executive or agent of the Company.
v. In the event that a termination occurs "without cause" or for
disability by the Company under this Agreement, this Section 7.a and
all references thereto shall be inapplicable as to the Executive and
the Company.
b. Non-Disclosure of Information. The Executive acknowledges that the
Company's trade secrets, private or secret processes, methods and ideas, as they
exist from time to time, customer lists and information concerning the Company's
products, services, training methods, development, technical information,
marketing activities and procedures, credit and financial data concerning the
Company and/or the Company's Clients, and (the "Proprietary Information") are
valuable, special and unique assets of the Company, access to and knowledge of
which are essential to the performance of the Executive hereunder. In light of
the highly competitive nature of the industry in which the Company's business is
conducted, the Executive agrees that all Proprietary Information, heretofore or
in the future obtained by the Executive as a result of the Executive's
association with the Company shall be considered confidential.
In recognition of this fact, the Executive agrees that until a
termination occurs for any reason under this Agreement, the Executive will not
use or disclose any of such Proprietary Information for the Executive's own
purposes or for the benefit of any person or other entity or organization
(except the Company) under any circumstances unless: (i) such Proprietary
Information has been publicly disclosed generally; (ii) upon written advice of
legal counsel reasonably satisfactory to the Company; (iii) the Executive is
legally required to disclose such Proprietary Information; or (iv) unless such
documentation is necessary in order for the Executive to obtain investment or
tax advice.
c. Company's Clients. The "Company's Clients" shall be deemed to be any
persons, partnerships, corporations, professional associations or other
organizations for whom the Company has performed Business Activities.
d. Restricted Area. The Restricted Area shall be deemed to mean any
county of any state in which the Company's administrative office is located.
e. Business Activities. Manufacture or design of center console fishing
boats.
8. Indemnification. As an employee, officer and director of the
Company, the Executive shall be indemnified against and the Company shall use
its best efforts to maintain director and officer insurance in amounts not less
than $2,000,000 for all liabilities, damages, fines, costs and expenses to the
fullest extent to which employees, officers and directors of a corporation
organized under the laws of the state of Florida may be indemnified. The
Executive shall continue to be covered by the Articles of Incorporation and/or
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the Bylaws of the Company with respect to matters occurring on or prior to the
date of termination of the Executive's employment with the Company, subject to
all the provisions of Florida and Federal law and the Articles of Incorporation
and Bylaws of the Company then in effect. Such reasonable expenses, including
attorneys' fees that may be covered by the Articles of Incorporation and/or
Bylaws of the Company shall be paid by the Company on a current basis in
accordance with such provision, the Company's Articles of Incorporation and
Florida law.
9. Withholding. Anything to the contrary notwithstanding, all payments
required to be made by the Company hereunder to the Executive or the Executive's
estate or beneficiaries shall be subject to the withholding of such amounts, if
any, relating to tax and other payroll deductions as the Company may reasonably
determine it should withhold pursuant to any applicable law or regulation. In
lieu of withholding such amounts, the Company may accept other arrangements
pursuant to which it is satisfied that such tax and other payroll obligations
will be satisfied in a manner complying with applicable law or regulation.
10. Notices. Any notice required or permitted to be given under the
terms of this Agreement shall be sufficient if in writing and if sent postage
prepaid by registered or certified mail, return receipt requested; by overnight
delivery; by courier; or by confirmed telecopy, in the case of the Executive to
the Executive's last place of business or residence as shown on the records of
the Company, or in the case of the Company to its principal office as set forth
in the first paragraph of this Agreement, or at such other place as it may
designate.
11. Certain Tax Matters. The Company shall indemnify and hold the
Executive harmless from and against (i) the imposition of excise tax (the
"Excise Tax") under Section 4999 of the Internal Revenue Code of 1986, as
amended (or any successor provision thereto, the "Code"), on any payment made
under this Agreement (including any payment made under this paragraph) and any
interest, penalties and additions to tax imposed in connection therewith, and
(ii) any federal, state or local income tax imposed on any payment made pursuant
to this paragraph. The Executive shall not take the position on any tax return
or other filing that any payment made under this Agreement is subject to the
Excise Tax, unless, in the opinion of independent tax counsel reasonably
acceptable to the Company, there is no reasonable basis for taking the position
that any such payment is not subject to the Excise Tax under U.S. tax law then
in effect. If the Internal Revenue Service makes a claim that any payment or
portion thereof is subject to the Excise Tax, at the Company's election, and the
Company's direction and expense, the Executive shall contest such claim;
provided, however, that the Company shall advance to the Executive the costs and
expenses of such contest, as incurred. For the purpose of determining the amount
of any payment under clause (ii) of the first sentence of this paragraph, the
Executive shall be deemed to pay federal income taxes at the highest marginal
rate of federal income taxation applicable to individuals in the calendar year
in which such indemnity payment is to be made and state and local income taxes
at the highest marginal rates of taxation applicable to individuals as are in
effect in the jurisdiction in which the Executive is resident, net of the
reduction in federal income taxes that is obtained from deduction of such state
and local taxes.
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12. Waiver. Unless agreed in writing, the failure of either party, at
any time, to require performance by the other of any provisions hereunder shall
not affect its right thereafter to enforce the same, nor shall a waiver by
either party of any breach of any provision hereof be taken or held to be a
waiver of any other preceding or succeeding breach of any term or provision of
this Agreement. No extension of time for the performance of any obligation or
act shall be deemed to be an extension of time for the performance of any other
obligation or act hereunder.
13. Completeness and Modification. This Agreement constitutes the
entire understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the Employment Agreement. This Agreement may be amended, modified, superseded or
canceled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by the
parties or, in the case of a waiver, by the party to be charged.
14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute but one agreement.
15. Binding Effect/Assignment. This Agreement shall be binding upon the
parties hereto, their heirs, legal representatives, successors and assigns. This
Agreement shall not be assignable by the Executive but shall be assignable by
the Company in connection with the sale, transfer or other disposition of its
business or to any of the Company's affiliates controlled by or under common
control with the Company.
16. Governing Law Venue. This Agreement shall become valid when
executed and accepted by Company. The parties agree that it shall be deemed made
and entered into in the State of Florida and shall be governed and construed
under and in accordance with the laws of the State of Florida. Any action or
dispute concerning this Agreement shall be brought in the appropriate court in
Broward County, Florida. Anything in this Agreement to the contrary
notwithstanding, the Executive shall conduct the Executive's business in a
lawful manner and faithfully comply with applicable laws or regulations of the
state, city or other political subdivision in which the Executive is located.
17. Further Assurances. All parties hereto shall execute and deliver
such other instruments and do such other acts as may be necessary to carry out
the intent and purposes of this Agreement.
18. Headings. The headings of the sections are for convenience only and
shall not control or affect the meaning or construction or limit the scope or
intent of any of the provisions of this Agreement.
19. Survival. Any termination of this Agreement shall not, however,
affect the ongoing provisions of this Agreement, which shall survive such
termination in accordance with their terms.
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20. Severability. The invalidity or unenforceability, in whole or in
part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase or word or of any provision of this
Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
21. Enforcement. Should it become necessary for any party to institute
or defend any action whatsoever in order to enforce the terms and conditions of
this Agreement, the Executive shall be awarded all reasonable costs and fees
incurred as a result of such action.
22. Construction. This Agreement shall be construed within the fair
meaning of each of its terms and not against the party drafting the document.
THE EXECUTIVE ACKNOWLEDGES THAT THE EXECUTIVE HAS READ ALL OF THE TERMS OF THIS
AGREEMENT, UNDERSTANDS THE AGREEMENT, AND AGREES TO ABIDE BY ITS TERMS AND
CONDITIONS.
IN WITNESS WHEREOF, the parties have executed this Agreement as of date
set forth in the first paragraph of this Agreement.
THE COMPANY:
JUPITER MARINE INTERNATIONAL
HOLDINGS, INC.
By:
-----------------------------------
THE EXECUTIVE:
LAWRENCE TIERNEY
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