Employment Agreement - Visual Data Corp. and Randy S. Selman
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made and
entered into as of the 21st day of October, 1996, (the "Effective Date"),
between Visual Data Corporation, a Florida corporation, whose principal place of
business is 1600 S. Dixie Highway, Suite 3A, Boca Raton, Florida 33432 (the
"Company") and Randy S. Selman, an individual whose address is 120 Yacht Club
Way, #206, Hypoluxo, Florida 33462 (the "Executive").
RECITALS
A. The Company is a Florida corporation and is principally engaged in
the business of acquisition, marketing, development, distributing, and product
production of video information, including without limitation hotel, resort and
attraction specific, travel related information (the "Business").
B. The Company presently employs the Executive and desires to continue
to employ the Executive and the Executive desires to continue in the employ of
the Company.
C. The Company has established a valuable reputation and goodwill in the
Business.
D. The Executive, by virtue of the Executive's employment with the
Company has become familiar with and possessed with the manner, methods, trade
secrets and other confidential information pertaining to the Company's business,
including the Company's client base.
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 employs the Executive, and the
Executive hereby accepts employment, upon 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 Executive Officer, President and
Chairman of the Company and shall have general executive 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. It is further the intention of the parties that at all times during
the "Term," as hereinafter defined, of the Agreement, the Executive shall serve
as a member of the Board of Directors of the Company, in accordance with the
Bylaws of the Company.
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b. TIME DEVOTED. Throughout the term of the Agreement, the
Executive shall devote substantially all of the Executive's business time and
attention to the business and affairs of the Company consistent with the
Executive's senior executive position with the Company, except for reasonable
vacations and except for illness or incapacity, but nothing in the Agreement
shall preclude the Executive from engaging in personal business including as a
member of the board of directors of related 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.
In the event Executive shall, at any time, not be on the Board of Directors of
the Company and serving as Chairman of such Board, it shall be presumed (if
Executive so elects) that the Executive has been terminated other than for cause
and Executive shall have all of the rights specified in Section 6(h) of this
Agreement just as if the Executive had been terminated "Without Cause."
4. TERM. The Term of employment hereunder will commence on the date as
set forth above and terminate two (2) years from the Effective Date, and such
term shall automatically be extended for successive one (1) year terms
thereafter unless (1) the parties mutually agree in writing to alter or amend
the terms of the Agreement; or (2) one or both of the parties exercises their
right, pursuant to Section 6 herein, to terminate this employment relationship.
For purposes of this Agreement, the Term (the "Term") shall include the initial
term and all renewals thereof.
5. COMPENSATION AND BENEFITS.
a. SALARY. The Executive shall be paid a base salary (the "Base
Salary"), payable bi-weekly, at an annual rate of no less than One Hundred
Twenty-Five Thousand Dollars ($125,000.00) for the first year, with annual
incremental increases of ten (10%) percent per year and which annual incremental
increases shall be paid retroactively to January 1, 1997 for the first year of
this Agreement and on the anniversary of the Effective Date for each year
thereafter.
b. PERFORMANCE BASED BONUS. As additional compensation, the
Executive shall be entitled to receive a bonus ("Bonus") for each fiscal year
during the Term of the Executive's employment by the Company in an amount equal
to three percent (3%) of Earnings of the Company Before Income Tax, Depreciation
and Amortization (EBITDA) in excess of the EBITDA for the previous fiscal year.
The base year for the Bonus shall commence fiscal 1996. The Bonus shall be
payable within thirty (30) days of the determination of the amount of the Bonus.
c. STOCK OPTIONS. On January 1 of each year (the Grant Date"),
the Executive shall receive options to purchase 25,000 shares of Common Stock at
an exercise price equal to the average of the closing price for the five (5)
prior trading days prior to the Grant Date, for an exercise period of five (5)
years from the Grant Date.
d. 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,
including, but not limited to, pension and other retirement plans,
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group life insurance, hospitalization, surgical and major medical coverage, sick
leave, disability and salary continuation, vacation and holidays, cellular
telephone and all related costs and expenses, long-term disability, and other
fringe benefits.
e. VACATION. During each fiscal year of the Company, the
Executive shall be entitled to reasonable vacation 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, employee shall be entitled to four
(4) weeks vacation per year, with unused vacation accruing to the following
year.
f. BUSINESS EXPENSE REIMBURSEMENT. During the Term of employment,
the Executive shall be entitled to receive proper reimbursement for all
reasonable, out-of-pocket expenses incurred by the Executive (in accordance with
the policies and procedures established by the Company for its senior executive
officers) in performing services hereunder, provided the Executive properly
accounts therefor.
g. AUTOMOBILE EXPENSES. The Company shall provide the Executive
with an automobile allowance not to exceed $500.00 per month. The Company shall
pay all insurance premiums for the automobile that is the subject of the
automobile allowance.
h. MEMBERSHIPS, DUES AND CHARITABLE CONTRIBUTIONS. The Company
shall provide to the Executive, in the Executive's sole discretion (I) a
membership in a social, charitable or religious organization or club, which
membership shall be either in the name of the Executive or in the name of the
Company, as determined by the Executive; or (ii) an equivalent dollar amount of
charitable donations or contributions shall be made, which amounts and which
charities shall be determined in the sole discretion of the Executive; provided
that such Membership, Dues and Charitable Contributions shall not exceed Five
Thousand Dollars ($5,000) per year.
i. PLACE OF EMPLOYMENT - MOVING ALLOWANCE. This Agreement is
entered into on the basis that the principal place of business of the Company,
and the location from which Executive is to be based for the performance of his
services hereunder, is Boca Raton, Florida. In the event that the Company shall
change the location of Company's principal office, or otherwise require
Executive to be based and/or to operate from, another location which is more
than fifty (50) miles further from Executive's then-current residence than
Company's current headquarters office at 1600 S. Dixie Highway, Suite 3A, Boca
Raton, Florida, Company shall reimburse Executive for all moving and relocation
expenses paid or incurred in connection with Executive's relocation to a new
residence closer to Company's new principal office.
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6. CONSEQUENCES OF TERMINATION OF EMPLOYMENT.
a. DEATH. In the event of the death of the Executive during the
Term, salary 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 for a period of one (1) year from and after the date of death. The
Company shall also be obligated to pay to the Executive's estate or heirs, as
the case may be, such amount of Bonus based upon (I) the formula set forth in
Section 5(b) of this Agreement, and (ii) the greater of (a) the Bonus earned or
accrued for such fiscal year annualized for a 12-month period, or (b) the Bonus
for the prior year multiplied times two. Other death benefits will be determined
in accordance with the terms of the Company's benefit programs and plans.
b. DISABILITY.
(1) 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 Executive's salary for a period, at the annual rate in effect
immediately prior to the commencement of disability, of not less than
180 days from the date on which the disability has been deemed to occur
as hereinafter provided below. 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.
(2) "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 due
to 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 of employment hereunder due to disability as
provided in the preceding paragraph, the Executive becomes reemployed,
whether as an Executive or a consultant to the Company, any salary,
annual incentive payments or other benefits earned by the Executive from
such reemployment shall offset any salary continuation due to the
Executive hereunder commencing with the date of re-employment.
c. TERMINATION BY THE COMPANY FOR CAUSE.
(1) 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
twenty (20) days after the date of such termination plus
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any accrued Bonus through such date of termination. Any rights and
benefits the Executive may have in respect of any other compensation
shall be determined in accordance with the terms of such other
compensation arrangements or such plans or programs.
(2) "Cause" shall mean and include those actions or events
specified below in subsections (A) through (E) 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, gross neglect or embezzlement against the
Company; (B) committing or participating in any other injurious act or
omission wantonly, willfully, recklessly or in a manner which was
grossly negligent against the Company, monetarily or otherwise; (C)
engaging in a criminal enterprise involving moral turpitude; (D)
conviction of an act or acts constituting a felony under the laws of the
United States or any state thereof; or (E) any assignment of this
Agreement by the Executive in violation of Section 14 of this Agreement.
No actions, events or circumstances occurring or taking place at any
time prior to the date of this Agreement shall in any event constitute
or provide any basis for any termination of this Agreement for Cause;
(3) 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) contained in this
Agreement and specifying the particulars thereof and the Executive shall
be given a thirty (30) day period to cure such conduct, if possible.
d. TERMINATION BY THE COMPANY OTHER THAN FOR CAUSE.
(1) The foregoing notwithstanding, the Company may
terminate the Executive's employment for whatever reason it deems
appropriate; provided, however, that in the event such termination is
not based on Cause, as provided in Section 6(c) above, the Company may
terminate this Agreement upon giving three (3) months' prior written
notice. During such three (3) month period, the Executive shall continue
to perform the Executive's duties pursuant to this Agreement, and the
Company shall continue to compensate the Executive in accordance with
this Agreement. The Executive will receive, at the Executive's option,
either (A) a lump sum equal to the "Compensation and Benefits," as
hereinafter defined, for the remaining balance of the Term of this
Agreement, at the then current rate, reduced to present value, as set
forth in Section 280G of the Internal Revenue Code or (B) for the
remaining balance of the Term of this Agreement from and after the date
of any such termination, the Company shall on the last day of each
calendar month pay to the Executive such "Compensation and Benefits,"
which shall be an amount equal to (Y) One Hundred percent (100%) of the
Executive's compensation and benefits set forth in Section 5, which
shall specifically include the Base Salary and Executive Benefits (the
"Compensation and Benefits"), on the date of any such
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termination, divided by (Z) twelve (12); provided, however, that if (A)
there is a decrease in the Executive's Compensation and Benefits of more
than five (5%) percent prior to termination for any reason other than
for "Cause", and (B) the Executive is terminated without cause, the
Compensation and Benefits shall be as existed immediately prior to such
a decrease. The Executive will be entitled to continued Compensation and
Benefits coverage and credits as provided in Section 5 or to
reimbursement for the cost of providing the Executive with comparable
benefit coverage during the term in which the Executive is receiving
payments from the Company after termination pursuant to Section 6(d).
Such benefit coverage will be offset by comparable coverage provided to
the Executive in connection with subsequent employment.
(2) In the event that the Executive's employment with the
Company is terminated pursuant to this Section 6(d), Section 6(f),
Section 6(g), Section 7(a) of this Agreement and all references thereto
shall be inapplicable as to the Executive and the Company.
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, including any renewals thereof, such termination shall constitute a
voluntary termination and in such event the Executive shall be limited to the
same rights and benefits as provided in connection with a termination for Cause
as provided in Section 6(c).
f. CONSTRUCTIVE TERMINATION OF EMPLOYMENT. If the Executive so
elects, a termination by the Company without Cause 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:
(1). 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
(2) Change in the Executive's principal office to a
location outside the Palm Beach-Broward County, Florida area; or
(3) any reduction in the Executive's salary or any change
in the method of calculating Executive's Bonus Compensation hereunder;
or
(4) a material breach of the Agreement by the Company; or
(5) a material reduction of the Executive's benefits under
any employee 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,
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which reduction shall not be effectuated for similarly situated
employees of the Company; or
(6) failure by a successor company to assume the
obligations under the Agreement.
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
(1) through (7) above).
g. TERMINATION FOLLOWING A CHANGE OF CONTROL.
(1) 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)(1), and, in any such event, such termination shall be deemed to be
a Termination by the Company Other than for Cause and the Executive
shall be entitled to such Compensation and Benefits as set forth in
Subsection 6(h) of this Agreement.
(2). 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 1 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 fifty percent (50%) or more of the
combined voting power of the Company's outstanding securities
then having the right to vote at elections of directors; or,
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(B) the individuals who at the commencement 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
(C) there is a failure to elect three or more (or
such number of directors as would constitute a majority of the
Board of Directors) candidates nominated by management of 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)(2) will not
apply where the Executive gives the Executive's explicit written waiver stating
that for the purposes of this Section 6(g)(2) 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.
(3) 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(f), then, in any such event, such termination
shall be deemed to be a Termination by the Company Other than for Cause
and the Executive shall be entitled to such Compensation and Benefits as
set forth in Subsection 6(h) of this Agreement.
h. COMPENSATION AND BENEFITS UPON TERMINATION OF EXECUTIVE
EMPLOYMENT. In the event of any termination of Executive's employment Without
Cause under Section 6(d), or any termination of Executive's employment pursuant
to Section 6(f) or Section 6(g), on the effective date of any such termination,
the Executive shall be entitled to receive the following:
(1) All life, disability and health insurance benefits to
which he was entitled to continue to receive thirty (30) days prior to
the Effective Date of the
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Settlement Agreement, for a period of two (2) years following the
effective date of such termination; provided that in the Executive's
sole discretion, the Executive may receive the cash equivalent of all or
any part of such life, disability and/or health insurance benefits from
the Company in lieu of receiving such benefits; plus
(2) Base Compensation equal to three (3) times the
Executive's annual Base Salary, based upon the greater of the
Executive's Base Salary (I) immediately prior to the effective date of
termination or (ii) or as of ninety (90) days prior to the effective
date of termination. All Base Compensation shall be payable to the
Executive by-weekly; provided that in the event that the Executive is
entitled to receive the Base Compensation as a result of a Change in
Control, at the Executive's option, the Executive may receive either (i)
a lump sum equal to the Base Compensation due to the Executive pursuant
to Section 6(g) reduced to present value, as set forth in Section 280G
of the Internal Revenue Code or (ii) bi-weekly; plus
(3) Any accrued Bonus multiplied times two as computed to the
effective date of such termination, computed on the basis of actual
figures through such effective date of termination and based upon the
formula set forth in Section 5(b) above.
The provisions of this Section 6(h) notwithstanding, the Compensation and
Benefits to be received by the Executive pursuant to this Section 6(h) shall not
exceed the amount set forth in Section 162(m) of the Internal Revenue Code, or
its successor provision.
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, in the event
the Executive's employment is terminated by reason of disability pursuant to
Section 6(b) or for Cause pursuant to Section 6(c), then the Executive agrees to
the following:
I. That during the Restricted Period (as hereinafter
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 Competitive 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 or
agent.
ii. That during the Restricted Period 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
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with the Company at the time during the Restricted Period to discontinue
or reduce the extent of such relationship with the Company.
b. NON-DISCLOSURE OF INFORMATION. In the event Executive's
employment has been terminated pursuant to either Section 6(b) or Section 6(c)
hereof, Executive agrees that, during the Restricted Period, Executive will not
use or disclose any Proprietary Information of the Company for the Executive's
own purposes or for the benefit of any entity engaged in Competitive Business
Activities. As used herein, the term "Proprietary Information" shall mean trade
secrets or confidential proprietary information of the Company which are
material to the conduct of the business of the Company. No information can be
considered Proprietary Information unless the same is a unique process or method
material to the conduct of Company's Business, or is a customer list or similar
list of persons engaged in business activities with Company, or if the same is
otherwise in the public domain or is required to be disclosed by order of any
court or by reason of any statute, law, rule, regulation, ordinance or other
governmental requirement. Executive further agrees that in the event his
employment is terminated pursuant to Sections 6(b) or 6(C) above, all Documents
in his possession at the time of his termination shall be returned to the
Company at the Company's principal place of business.
c. DOCUMENTS. "Documents" shall mean all original written,
recorded, or graphic matters whatsoever, and any and all copies thereof,
including, but not limited to: papers; books; records; tangible things;
correspondence; communications; telex messages; memoranda; work-papers; reports;
affidavits; statements; summaries; analyses; evaluations; client records and
information; agreements; agendas; advertisements; instructions; charges;
manuals; brochures; publications; directories; industry lists; schedules; price
lists; client lists; statistical records; training manuals; computer printouts;
books of account, records and invoices reflecting business operations; all
things similar to any of the foregoing however denominated. In all cases where
originals are not available, the term "Documents" shall also mean identical
copies of original documents or non-identical copies thereof.
d. COMPANY'S CLIENTS. The "Company's Clients" shall be deemed to
be any partnerships, corporations, professional associations or other business
organizations for whom the Company has performed Business Activities.
e. RESTRICTIVE PERIOD. The "Restrictive Period" shall be deemed
to be twelve (12) months following termination of this Agreement pursuant to
Sections 6(b) or 6(C) of this Agreement.
f. RESTRICTED AREA. The "Restricted Area" shall, if this
Agreement has been terminated pursuant to Section 6(b) or 6(c), be the area
commonly included as part of the "Standard Metropolitan Statistical Area" of
Boca Raton, Florida.
g. COMPETITIVE BUSINESS ACTIVITIES. The term "Competitive
Business Activities" as used herein shall be deemed to mean the Business.
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h. COVENANTS AS ESSENTIAL ELEMENTS OF THIS AGREEMENT. It is
understood by and between the parties hereto that the foregoing covenants
contained in Sections 7(a) and (b) are essential elements of this Agreement, and
that but for the agreement by the Executive to comply with such covenants, the
Company would not have agreed to enter into this Agreement. Such covenants by
the Executive shall be construed to be agreements independent of any other
provisions of this Agreement. The existence of any other claim or cause of
action, whether predicated on any other provision in this Agreement, or
otherwise, as a result of the relationship between the parties shall not
constitute a defense to the enforcement of such covenants against the Executive.
I. SURVIVAL AFTER TERMINATION OF AGREEMENT. Notwithstanding
anything to the contrary contained in this Agreement, the covenants in Sections
7(a) and (b) shall survive the termination of this Agreement and the Executive's
employment with the Company.
j. REMEDIES.
I. The Executive acknowledges and agrees that the Company's
remedy at law for a breach or threatened breach of any of the provisions
of Section 7(a) or (b) herein would be inadequate and a breach thereof
will cause irreparable harm to the Company. In recognition of this fact,
in the event of a breach by the Executive of any of the provisions of
Section 7(a) or (b), the Executive agrees that, in addition to any
remedy at law available to the Company, including, but not limited to
monetary damages, all rights of the Executive to payment or otherwise
under this Agreement and all amounts then or thereafter due to the
Executive from the Company under this Agreement may be terminated and
the Company, without posting any bond, shall be entitled to obtain, and
the Executive agrees not to oppose the Company's request for equitable
relief in the form of specific performance, temporary restraining order,
temporary or permanent injunction or any other equitable remedy which
may then be available to the Company.
ii. The Executive acknowledges that the granting of a
temporary injunction, temporary restraining order or permanent
injunction merely prohibiting the use of Proprietary Information would
not be an adequate remedy upon breach or threatened breach of Section
7(a) or (b) and consequently agrees, upon proof of any such breach, to
the granting of injunctive relief prohibiting any form of competition
with the Company. Nothing herein contained shall be construed as
prohibiting the Company from pursuing any other remedies available to it
for such breach or threatened breach.
8. INDEMNIFICATION.
a. The Executive shall continue to be covered by the Articles of
Incorporation and/or 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
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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. To the extent that any such payments by the
Company pursuant to the Company's Articles of Incorporation and/or Bylaws may be
subject to repayment by the Executive pursuant to the provisions of the
Company's Articles of Incorporation or Bylaws, or pursuant to Florida or Federal
law, such repayment shall be due and payable by the Executive to the Company
within twelve (12) months after the termination of all proceedings, if any,
which relate to such repayment and to the Company's affairs for the period prior
to the date of termination of the Executive's employment with the Company and as
to which Executive has been covered by such applicable provisions.
b. The Company specifically acknowledges and agrees that the Executive
has personally guaranteed certain obligations on behalf of the Company and
further that the Executive is personally liable for certain obligations of the
Company. The Company shall indemnify and hold the Executive harmless from any
and all obligations that the Executive may incur, including, without limitation,
costs and attorneys fees in connection with such guaranties or personal
liabilities. Any costs or expenses that may be incurred by the Executive in
connection with such liabilities or guaranties shall be reimbursed to the
Executive, upon receipt by the Company of documented evidence of such
liabilities, within three (3) business days of the receipt of such documented
evidence.
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. 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.
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12. 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.
13. 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.
14. 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.
15. GOVERNING LAW. 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. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. ENFORCEMENT. Should it become necessary for any party to institute
legal action to enforce the terms and conditions of this Agreement, the
successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs.
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21. VENUE. Company and Executive acknowledge and agree that the U.S.
District for the Southern District of Florida, or if such court lacks
jurisdiction, the 15th Judicial Circuit (or its successor) in and for Palm Beach
County, Florida, shall be the venue and exclusive proper forum in which to
adjudicate any case or controversy arising either, directly or indirectly, under
or in connection with this Agreement and the parties further agree that, in the
event of litigation arising out of or in connection with this Agreement in these
courts, they will not contest or challenge the jurisdiction or venue of these
courts.
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.
Witness: The Company:
VISUAL DATA CORPORATION
/s/ JOANN TIPPER BY: /s/ ALAN SAPERSTEIN
----------------------------- ------------------------
Alan Saperstein, Executive Vice President
Witness: The Executive
/s/ PAULINE SCHNEIDER /s/ RANDY S. SELMAN
----------------------------- ------------------------
RANDY S. SELMAN
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