Executive Employment Agreement - Hvide Marine Inc. and Gerhard Kurz
HVIDE MARINE INC.
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement dated as of April 18, 2000, is by and between
Hvide Marine Incorporated (the "Company") and Gerhard Kurz (the "Executive").
In consideration of the mutual covenants and the mutual benefits
provided in this Employment Agreement, the receipt and sufficiency of which are
hereby acknowledged, the Company and Executive agree as follows:
1.0. Representations and Warranties.
1.1. Executive represents and warrants to the Company that
Executive is not bound by any restrictive covenants and has no prior or other
obligations or commitments of any kind that would in any way prevent, restrict,
hinder or interfere with Executive's acceptance of employment or the performance
of all duties and services hereunder to the fullest extent of Executive's
ability and knowledge. Executive agrees to indemnify and hold harmless the
Company for any liability the Company may incur as the result of the existence
of any such undisclosed covenants, obligations or commitments.
2.0. Term of Employment.
2.1. The Company will employ Executive commencing on the date
of Board approval, April 18, 2000 ("Effective Date") through December 31, 2002
(the "Employment Period"), unless Executive's employment is terminated prior the
end of the Employment Period in accordance with the terms of this Agreement, and
Executive accepts employment with the Company on the terms and conditions
contained in this Agreement.
3.0 Duties and Functions.
3.1. Executive shall be employed as the Chief Executive
Officer of the Company and shall oversee, direct and manage all operations of
the Company. Executive shall report directly to the Board. Executive agrees to
undertake the duties and responsibilities inherent in the position of Chief
Executive Officer, and as set forth in the By-laws of the Company which may also
encompass different or additional duties as may, from time to time, be assigned
by the Board, and the duties and responsibilities undertaken by Executive may be
altered or modified from time to time by the Board. Executive agrees to abide by
the rules, regulations, instructions, personnel practices and policies of the
Company and any changes which may be adopted at any time by the Company.
3.2. During the Employment Period, Executive will devote his
full time and efforts to the business of the Company and will not engage in
consulting work or any trade or business for his own account or for or on behalf
of any other person, firm or corporation that competes, conflicts or interferes
with the performance of his duties in any way. Executive may engage in
non-competitive charitable activities and serve on professional and civic boards
for reasonable periods of time each month so long as such activities, in the
sole discretion of the Board, do not interfere with Executive's responsibilities
under this Agreement.
4.0 Compensation.
4.1. Base Salary. As compensation for his services under this
Agreement, during Executive's employment as Chief Executive Officer, the Company
agrees to pay Executive a base salary at the rate of Three Hundred and Fifty
Thousand Dollars (US$350,000.00) per annum, payable in accordance with the
Company's normal payroll schedule, or on such other periodic basis as may be
mutually agreed upon. Such salary shall be subject to annual review by the Board
for possible upward adjustment based on Company policy and contributions made by
Executive to the enterprise. The Company may withhold from any amounts payable
under this Agreement such federal, state or local taxes as shall be required to
be withheld pursuant to any applicable law or regulation.
4.2. Bonus. Executive shall be eligible to receive an annual
cash bonus award with a target bonus of one hundred percent (100%) of
Executive's then current base salary. The minimum guaranteed bonus for calendar
year 2000 is One Hundred and Seventy Five Thousand Dollars (US$175,000). The
amount of the annual bonus, over the minimum guaranteed bonus for calendar year
2000, and for 2001 and 2002 will be based upon the Company's achievement of
performance targets to be agreed upon annually between the Company and
Executive. For calendar year 2000, the performance targets will be agreed prior
to the Company's year 2000 annual shareholders meeting. Annual bonuses will be
paid to Executive upon completion of the Company's annual audit.
4.3. Stock Options. Executive shall be entitled to
participate in the Company's stock option plan, as may be amended from time to
time. All stock options granted to Executive shall be governed by the terms and
conditions of the Company's stock option plan.
(a) Initial Stock Options. Executive will be granted options
to purchase 75,000 shares of the Company's common stock on the Effective Date.
The initial options will have an exercise price equal to the fair market value
of the common stock on the Effective Date and will vest on the Effective Date.
(b) Additional Stock Options. Subject to the approval of the
Company's shareholders, Executive will be granted options to purchase an
additional 225,000 shares of the Company's common stock, of which 112,500 will
vest on January 1, 2001, and the remaining 112,500 will vest on December 31,
2002, provided that in each case Executive is employed by the Company on the
vesting date. The options will be granted on, and will have an exercise price
equal to the fair market value of the common stock on, the date of shareholder
approval.
4.4. Business Expenses. In addition to the compensation
provided for above, the Company agrees to pay or to reimburse Executive during
his employment for all reasonable, ordinary and necessary, properly vouchered,
client-related business or entertainment expenses incurred in the performance of
his services under this Agreement in accordance with Company policy in effect
from time to time. Executive shall submit vouchers and receipts for all expenses
for which reimbursement is sought.
4.5. Relocation Expenses. In addition to the compensation
provided for above, the Company agrees to pay or reimburse Executive for his
reasonable temporary living expenses for six (6) months in the Fort Lauderdale,
Florida area pending Executive's permanent relocation. If Executive's relocation
is not completed within six (6) months from the date of this Agreement, the
Board will consider, at its sole discretion, an extension of the temporary
living expenses for an additional period of time. The Company will also
reimburse Executive for his actual moving expenses to the Fort Lauderdale,
Florida area in accordance with standard Company policy.
4.6. Fringe Benefits. In addition to the compensation provided
for above, Executive shall be entitled to the benefits available generally to
Company employees pursuant to Company programs, including, by way of
illustration, personal leave, paid holidays, sick leave, retirement, disability,
dental, vision, group sickness, accident or health insurance programs of the
Company which may now or, if not terminated, shall hereafter be in effect, or in
any other or additional such programs which may be established by the Company,
as and to the extent any such programs are or may from time to time be in
effect, as determined by the Company in its sole discretion.
5.0. Confidential Information.
5.1. Executive acknowledges and agrees that due to the nature
of his employment with the Company, and the position of trust that he will hold,
he will have special access to, learn, be provided with, and in some cases, will
prepare and create for the Company, trade secrets, know-how and other
confidential and proprietary information relating to the business and operations
of the Company and the Company's customers and contractors, including, but not
limited to, (a) information relating to the Company's technology and research
and development activities; (b) the identity of the suppliers and contractors of
the Company and the terms of the relationships with such suppliers and
contractors, including price information; (c) the identity of customers and
customer contacts and terms of the relationships with the customers and
potential customers of the Company; (d) the procedures, methods, standards,
specifications, concepts, policies, tools, and techniques of or relating to the
operation of the Company; (e) manuals, including without limitations, design,
training, strategy, and policy and procedures manuals; (f) business
opportunities, business plans, marketing information and business strategies;
and (g) earnings and other financial data of the Company (collectively referred
to as "Confidential Information").
5.2. Executive acknowledges and agrees that such Confidential
Information is the exclusive property of the Company, that it has been and will
continue to be of central importance to the business of the Company, and that
the disclosure of it to, or use by, others will cause the Company substantial
and irreparable harm. Accordingly, Executive shall not, either during his
employment or at any time after the termination of his employment with the
Company for any reason, use, reproduce or disclose any such Confidential
Information, except as may be necessary in discharging his assigned duties as an
employee of the Company. In addition, Executive agrees to hold Confidential
Information in strict confidence and to use all reasonable precautions to assure
that it is not disclosed to unauthorized persons or used in an unauthorized
manner, both during and after Executive's employment with the Company.
6.0. Restrictions on Unfair Competition.
6.1. In addition to other business activities, the Company is
engaged in the business of marine transportation, of oil and chemicals and
harbor towing in the United States, and vessel support operations for the
off-shore energy business in the United States and throughout the world. Among
other duties, Executive shall be responsible for developing business
opportunities and developing, maintaining, and enhancing the Company's good-will
and business relationships with customers, all for the benefit of the Company;
and Executive acknowledges that due to the nature of his employment, he will
have special access to, contact with confidential, proprietary and trade secret
information relating to the Company's business operations and that of the
Company's customers and prospective customers. Executive also acknowledges that
the Company has incurred considerable expense and will invest considerable time
and resources in developing and maintaining its confidential, proprietary and
trade secret information and its relationships with customers, and that such
information and relationships are critical to the success of the Company's
business. In addition, any attempt on the part of Executive to induce others to
leave the Company's employ, or any efforts by Executive to interfere with the
Company's relationships with other employees, also would be harmful and damaging
to the Company's business.
6.2. Accordingly, Executive agrees that, while he is in the
employ of the Company, and for a two (2) year period after the termination of
his employment for any reason, he shall not, either on his own behalf or on
behalf of any third party, except on behalf of the Company, directly or
indirectly:
(a) engage as an individual proprietor, partner,
stockholder, officer, employee, director, joint venturer,
investor, lender, or in any other capacity whatsoever (other
than as the holder of not more than one percent (1%) of the
total outstanding stock of a publicly held company), in any
business that is competitive with the business of the Company
in any geographic market that the Company is conducting
business or is attempting to conduct business; or
(b) solicit, encourage or induce any employee of the
Company to terminate his/her employment with the Company, or
otherwise interfere with or disrupt the Company's
relationships with its employees; or
(c) solicit, encourage, or induce any customer or
contractor of the Company, or any prospective customer or
contractor being actively pursued by the Company, to purchase
from, or otherwise contract with, another person or entity for
the types of products or services that are offered by the
Company, or otherwise solicit, encourage, or induce any such
customer or contractor to terminate or adversely modify any
business relationship with the Company or not to proceed with,
or enter into, any business relationship with the Company.
6.3. The parties agree that the relevant public policy aspects
of covenants not to compete have been discussed, and that every effort has been
made to limit the restrictions placed upon Executive to those that are
reasonable and necessary to protect the Company's legitimate interests.
6.4. If any restriction set forth in this Section is found by
any court of competent jurisdiction to be unenforceable because it extends for
too long a period of time or over too great a range of activities or geographic
area, it shall be interpreted to extend over the maximum period of time, range
of activities or geographic areas as to which it may be enforceable.
6.5. The restrictions contained in this Section are necessary
for the protection of the confidential, proprietary and/or trade secret
information and goodwill of the Company and are considered by Executive to be
reasonable for such purposes. Executive agrees that any material breach of this
Section will cause the Company substantial and irrevocable damage and therefore,
in the event of any such breach, in addition to such other remedies which may be
available, the Company shall have the right to seek specific performance and
injunctive relief.
7.0. Company Property.
7.1. All correspondence, records, documents, software,
promotional materials, and other Company property, including all
copies, which come into Executive's possession by, through or in the
course of his employment, regardless of the source and whether created
by Executive, are the sole and exclusive property of the Company, and
immediately upon the termination of Executive's employment, Executive
shall return to the Company all such property of the Company. Executive
acknowledges and agrees that the Company may withhold any sums
otherwise due to Executive upon termination until Executive has
satisfied all of his obligations under this Section.
8.0. Termination of Employment.
8.1. If the Company terminates the employment relationship
"for cause," or if Executive resigns without "good reason," the Company shall
pay Executive's salary through the date of termination, and Executive shall not
be entitled to any further compensation, remuneration or benefits from the
Company whatsoever. The Company may immediately terminate the employment
relationship "for cause" without providing any advance written notice or pay in
lieu of notice.
8.2. If Executive resigns for "good reason," the Company will
provide severance in the amount calculated in accordance with Section 9.2. of
this Agreement.
8.3. As used in this Agreement, "cause" for termination means
the occurrence of any one or more of the following: (a) conviction of a felony,
plea of guilty or nolo contendre to any felony charge; (b) evidence of criminal
acts involving moral turpitude; (c) embezzlement, fraud, theft,
misappropriation, falsification of records, dishonesty; (d) breach of fiduciary
duty, insubordination, incompetence; (e) violation of any material Company rule,
regulation or policy; (f) acts materially adverse to the Company; (g) failure to
satisfactorily perform assigned duties; (h) repeatedly being under the influence
of alcohol or drugs (other than prescription medications or other legal
medically-related substances to the extent they are taken in accordance with a
physician's directions); (i) engaging in grossly inappropriate conduct during
the performance of his duties under this Agreement such as engaging in behavior
that could constitute grounds for Company liability for discrimination or
harassment (as proscribed by the U.S. Equal Employment Opportunity Commission
Guidelines or any other applicable federal state or local employment law); or
(j) violation any of the covenants set forth in this Agreement. Notwithstanding
the foregoing, if the Company intends to terminate Executive's employment for
violation of a material Company rule, regulation or policy, or for failure to
satisfactorily perform his assigned duties, the Company will provide Executive
with written notice setting forth the exact nature of the violation(s) and/or
deficiencies and the conduct required to cure the violation(s) and/or
deficiencies to the extent they are of they type that are curable. Executive
will have thirty (30) days from the date of such notice within which to cure any
such violation(s) and/or deficiencies.
8.4. As used in this Agreement, "good reason" for Executive to
resign means, without Executive's express written consent, the occurrence of any
one or more of the following: (a) a material reduction or alteration in the
nature, scope or status of Executive's authorities, duties or responsibilities;
(b) a material reduction by the Company of Executive's compensation; and (c) the
Company's failure to pay any part of Executive's compensation within four (4)
weeks after such compensation was due. At least sixty (60) days prior to the
effective date of his resignation, Executive shall provide the Company with
written notice stating the reasons for his resignation, and Executive's
resignation shall be deemed for "good reason" only if the Company fails to
satisfactorily address and rectify the matter(s) within thirty (30) days after
receiving such written notice from Executive.
8.5. In the event Executive becomes permanently disabled
during employment with the Company, the Company may terminate Executive's
employment by giving thirty (30) days notice to Executive of its intent to
terminate, and unless Executive resumes performance of the duties set forth in
Section 3 within five (5) days of the date of the notice and continues
performance for the remainder of the notice period, Executive's employment shall
terminate at the end of the thirty (30) day period. In the event that
Executive's employment is terminated as provided for in this Section 8.5.,
Executive will be entitled to receive compensation totaling one (1) year of
Executive's then current base pay; provided, however, that such compensation
shall be reduced by the amount of any short or long term disability payments
received by Executive pursuant to any Company disability plan. "Permanently
disabled" for the purposes of this Agreement means the inability, due to
physical or mental ill health, to perform Executive's duties for ninety (90)
days during any one employment year irrespective of whether such days are
consecutive.
8.6. Executive's employment will terminate immediately upon
Executive's death and the Company shall not have any further liability or
obligation to the Executive, his executors, heirs, assigns or any other person
claiming under or through his estate, except that Executive's estate shall
receive any accrued but unpaid salary or bonuses.
9.0. Severance.
9.1. Executive will be entitled to the severance payments
described in this Section upon the termination of his employment pursuant to
this Agreement: (a) by the Company under circumstances that constitute a
termination "without cause" or (b) by Executive under circumstances that
constitute termination for "good reason," both as defined in Section 8 of this
Agreement. However, any such severance payments will cease and Executive will be
obligated to return the value of any severance payments previously received if
Executive breaches any duty or obligation under Sections 5, 6, 7 or 12 this
Agreement.
9.2 In general, if Executive's employment is terminated
"without cause" or for "good reason," Executive will receive an amount equal to
the sum of (i) the remainder of Executive's base salary for the term of this
Agreement and (ii) the maximum bonus to which he would have been entitled, such
amount to be paid in equal monthly amounts over the remaining term of the
Agreement or, at the election of Company, in a lump sum. In the event of
Executive's death, any remaining payments shall be paid to Executive's estate in
a single lump sum amount.
9.3. If Executive's employment is terminated in the
circumstances described in Section 9.2. of this Agreement and if such
termination occurs following a "Change In Control" as defined in Section 10 of
this Agreement, Executive will receive, instead of the amounts specified in
Section 9.2. of this Agreement, an amount equal to 2.00 times Executive's base
salary then in effect plus 2.00 times Executive's maximum bonus if the closing
occurs prior to December 31, 2001, to be paid in twenty-four (24) equal monthly
installments or, at the election of the Company, in a lump sum. If the closing
occurs after December 31, 2001, Executive will receive, instead of the amounts
specified in Section 9.2. of this Agreement., an amount equal to 1.00 times
Executive's base salary then in effect plus 1.00 times Executive's maximum bonus
to be paid in twelve (12) equal monthly installments or, at the Company's
election, in a lump sum. In the event of Executive's death, any remaining
payments shall be paid to Executive's estate or personal administrator in a
single lump sum amount.
10.0. "Change In Control."
10.1. For purposes of this Agreement, a "Change In Control"
shall occur in any of the following circumstances:
(a) Fifty-one percent (51%) or more of the outstanding voting
stock of the Company as of the date of this Agreement is acquired or
beneficially acquired (as defined in Rule 13d-3 under the Securities Exchange
Act of 1934, as amended, or any successor rule thereto) by any person or entity
other than any current Company shareholder or any person who obtains such
Company shares through the estate or personal administrator of any current
Company shareholder, in a transaction other than a public offering of the voting
stock of the Company or a new equity offering in exchange for stock of the
Company;
(b) The Company is merged or consolidated with or into another
corporation and the current Company shareholders or any person who obtains
Company shares through the estate or personal administrator of any current
Company shareholder, in the aggregate hold less than fifty percent (50%) of the
voting stock of the surviving entity or its parent corporation immediately after
the merger or consolidation; or
(c) All or substantially all of the assets of the Company are
sold or otherwise transferred to any person or entity other than any current
Company shareholder or any person who obtains Company shares through the estate
or personal administrator of any current Company shareholder (in one transaction
or a series of transactions). Notwithstanding the foregoing, a "Change In
Control" shall not be deemed to have occurred if the Company declares
bankruptcy, is placed in receivership, or if any local, state or federal
regulator assumes control of the Company.
11.0. Survival of Executive's Obligations.
11.1. Executive's obligations under Sections 5, 6, 7, 12, 14
and 19 of this Agreement shall continue and survive the termination of
Executive's employment or the termination or non-renewal of this Agreement for
any reason. Executive's obligations under Sections 5, 6, 7, 12, 14 and 19 of
this Agreement also shall survive any breach of this Agreement or any other
obligation by the Company, and the Company's breach shall not in any way alter
or relieve Executive's obligations.
12.0. Publicity.
12.1. Neither party shall issue, without consent of the other
party, any press release or make any public announcement with respect to this
Agreement or the employment relationship between them. Following the date of
this Agreement and regardless of any dispute that may arise in the future,
Executive and the Company jointly and mutually agree that they will not
disparage, criticize or make statements which are negative, detrimental or
injurious to the other to any individual, company or client, including within
the Company.
13.0. Arbitration.
13.1. In order to efficiently and justly resolve any
employment related disputes that may arise between them, the parties agree that
any controversy, claim or dispute arising out of or relating to this Agreement,
or the breach thereof, including any statutory or common law claims under
federal, state, or local law, shall be resolved by arbitration in accordance
with the "Agreement to Arbitrate All Employment Disputes" that is attached to
this Agreement as Appendix 1, and which is incorporated by reference in this
Agreement. The parties further acknowledge and agree that, due to the nature of
the confidential information, trade secrets, intellectual property, and customer
relationships belonging to the Company to which Executive has or will be given
access, and the likelihood of significant harm that the Company would suffer in
the event that such information was disclosed to third parties, nothing in this
Section shall preclude the Company from going to court to seek injunctive relief
to prevent Executive from violating the obligations established in Sections 5
and 6 of this Agreement.
14.0. Indemnification.
14.1. The Company shall indemnify and hold Executive harmless
for any liability incurred by reason of any act or omission performed by
Executive while acting in good faith on behalf of the Company and within the
scope of the authority of Executive pursuant to this Agreement and under the
rules and policies of the Company, except that Executive must have in good faith
believed that such action was in the best interest of the Company and such
course of action or inaction must not have constituted gross negligence, fraud,
willful misconduct, or breach of a fiduciary duty.
15.0. Binding Agreement.
15.1. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their heirs, personal representatives, successors
and assigns. In the event the Company is acquired, is a non surviving party in a
merger, or transfers substantially all of its assets, this Agreement shall not
be terminated and the transferee or surviving company shall be bound by the
provisions of this Agreement. The parties understand that the obligations of
Executive are personal and may not be assigned by him.
16.0. Entire Agreement.
16.1. This Agreement contains the entire understanding of
Executive and the Company with respect to employment of Executive and supersedes
any and all prior understandings, written or oral. This Agreement may not be
amended, waived, discharged or terminated orally, but only by an instrument in
writing, specifically identified as an amendment to this Agreement, and signed
by all parties. By entering into this Agreement, Executive certifies and
acknowledges that he has carefully read all of the provisions of this Agreement
and that he voluntarily and knowingly enters into it.
17.0. Severability.
17.1. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be deemed
severable from the remainder of this Agreement, and the remaining provisions
contained in this Agreement shall be construed to preserve to the maximum
permissible extent the intent and purposes of this Agreement. Any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
18.0. Governing Law and Submission to Jurisdiction.
18.1. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof. Executive expressly
consents to the jurisdiction of the Florida State and federal courts and
acknowledges that venue is proper in any judicial district within the State of
Florida. For the purposes of expediting the resolution of any claim or dispute,
the parties waive a trial by jury.
19.0. Notices.
19.1. Any notice provided for in this Agreement shall be
provided in writing. Notices shall be effective from the date of service, if
served personally on the party to whom notice is to be given, or on the third
(3rd) business day after mailing, if mailed by first class mail, postage
prepaid. Notices shall be properly addressed to the parties at their respective
addresses or to such other address as either party may later specify by notice
to the other.
20.0. Miscellaneous.
20.1. No delay or omission by the Company in exercising any
right under this Agreement shall operate as a waiver of that or any other right.
A waiver or consent given by the Company on any one occasion shall be effective
only in that instance and shall not be construed as a bar or waiver of any right
on any other occasion.
20.2. The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
20.3. The Company and Executive participated jointly in the
negotiation and preparation of this Agreement, and each has had the opportunity
to obtain the advice of legal counsel of its/his own choosing and to review,
comment upon, and redraft this Agreement. Accordingly, it is agreed that no rule
of construction shall apply against either the Company or Executive or in favor
of either of them. This Agreement shall be construed as if the Company and
Executive jointly prepared this Agreement, and any uncertainty or ambiguity
shall not be interpreted against any either of them or in favor of either of
them.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed and delivered, by its authorized officers or
individually, as of the 18th day of April, 2000.
Hvide Marine Incorporated
By: James J. Gaffney
Chairman of the Board
Gerhard Kurz
<PAGE>
APPENDIX 1
HVIDE MARINE, INC.
AGREEMENT TO ARBITRATE EMPLOYMENT DISPUTES
This Agreement To Arbitrate Employment Disputes (the "Agreement") is a
mutual voluntary agreement to resolve all employment disputes by arbitration
between me and Hvide Marine, Inc. (the "Company"). I am entering into this
Agreement in order to efficiently and justly settle any disputes that may arise
or exist between myself and the Company.
In consideration of my beginning or continuing employment with the
Company, and the wages and benefits paid or to be paid to me by the Company, I
agree that all matters directly or indirectly related to my recruitment,
employment or termination of employment by the Company shall be resolved by
impartial binding arbitration. By starting or continuing to work for the
Company, I agree that any controversy or claim involving a legally protected
right which arises out of my employment with the Company or the termination of
my employment with the Company will be settled by binding arbitration, and that
this is the exclusive, final, and binding forum for resolution of such claims.
This includes, but is not limited to, claims under Title VII of the Civil Rights
Act of 1964, the Age Discrimination in Employment Act, the Fair Labor Standards
Act, the Americans With Disabilities Act, the Family and Medical Leave Act, any
wage payment or collection law, or any other federal, state, or local law,
regulation, or ordinance regarding employment. It also includes, but is not
limited to, all claims for breach of contract or wrongful discharge, breach of
express or implied promises or covenants of good faith and fair dealing,
intentional or negligent infliction of emotional distress, defamation, or any
loss, expense, or claim whatever resulting from or related to my employment with
the Company.
I understand and acknowledge that this Agreement to arbitrate such
claims means that I cannot pursue an action against the Company in a court of
law regarding any employment dispute, except for claims involving workers'
compensation benefits or unemployment benefits. I also agree that the obligation
to arbitrate any dispute is fully enforceable under the Federal Arbitration Act,
and that judgment upon the arbitration award rendered by the arbitrator(s) may
be entered in any court having jurisdiction over such claims. I further
understand that this Agreement does not alter any of the substantive rights I
may have under law, including any statutory right to file a charge with an
administrative agency for investigative purposes or other action by that agency.
This Agreement simply transfers final resolution of my right to seek relief from
either a judge or a jury to a speedy and impartial arbitrator for the mutual
benefit of both parties. Notwithstanding the foregoing, this Agreement shall not
preclude the Company from seeking and being awarded injunctive relief by a court
in order to protect the Company's rights under Sections 5 through 8 of the
Employment Agreement between me and the Company which is attached to this
Agreement and incorporated by reference herein.
I understand and agree that all arbitration requests must be filed
within six (6) months from the event(s) giving rise to the claim or dispute or
within the time allowed by statute for filing an initial claim, where statutory
rights are involved. Claims which are not timely filed will be deemed waived.
The arbitration will be conducted in accordance with the American
Arbitration Association National Rules for the Resolution of Employment
Disputes, effective June 1, 1997, and any amendments or revisions thereto ("AAA
Rules"). A copy of the AAA Rules may be obtained from the Human Resources
Department. The dispute shall be heard and determined by one arbitrator. The
arbitrator may grant any remedy or relief that would have been available to the
parties had the matter been heard in court. Unless otherwise mutually agreed
upon, the arbitration shall be heard within 25 miles of my current or most
recent place of employment with the Company.
If I wish to pursue a claim under the arbitration procedure, I must
first file a demand for arbitration with the American Arbitration Association in
accordance with AAA Rules, including with the demand the applicable filing fee.
In addition, I must submit a copy of the demand to the President of the Company.
the Company will pay any other filing or other administrative fees required by
AAA for the cost of providing administrative services. All expenses of the
arbitration, including required travel and other expenses of the arbitrator,
shall be borne equally by the parties, as provided by the AAA Rules.
I recognize that nothing in this Agreement constitutes an express or
implied contract of employment for any definite period of time or for the
warranty of any benefits, and that this Agreement does not alter the at-will
relationship of my employment. This Agreement supersedes any prior oral or
written agreements or understandings, and cannot be modified except in writing,
signed by me and the President of the Company. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. The language of all parts of this Agreement shall in all
cases be construed as a whole, according to its fair meaning, and not strictly
for or against any of the parties. This Agreement having been negotiated,
prepared and executed in accordance with the laws of the State of Florida, this
Agreement, including its interpretation, application and enforcement, and all
causes and controversies arising hereunder, shall be determined in accordance
with, and shall be governed, by the laws of the State of Florida without giving
effect to the conflicts of laws principles thereof. If any terms of this
Agreement are found by a court of competent jurisdiction to be null, void, or
inoperative for any reason, the remaining provisions will remain in full force
and effect.
YOU MAY WISH TO CONSULT AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT. IF SO, TAKE
A COPY OF THIS FORM WITH YOU. HOWEVER, YOU CANNOT BEGIN OR CONTINUE EMPLOYMENT
UNTIL THIS FORM IS SIGNED AND RETURNED BY YOU.
Gerhard Kurz Date