As filed with the Securities and Exchange Commission on May 10, 2000.
Registration No. 333-3074
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SECURITIES AND EXCHANGE COMMISSION
Washington D. C. 20549
FORM 8-K
FILED MAY 12, 2000
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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Date of Report (Date of earliest event reported) May 5, 2000
NEXLAND, INC.
(Exact Name of registrant as specified in its charter)
Arizona 333-3074 65-0782410
(State of other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification Number)
1101 Brickell Avenue
Suite 702, North Tower
Miami, Florida 33131
(Address of principal executive offices)
Tel: (305) 358-7771
(Registrant's telephone number)
20801 Biscayne Boulevard
Aventura, Florida 33180
(Former name or former address, if changed since last report)
Item 1. Change in Control of Registrant.
Not applicable
Item 2. Acquisition or Disposition of Assets.
Not applicable
Item 3. Bankruptcy or Receivership.
Not applicable
Item 4. Changes in Registrant's Certifying Accountant.
Williams & Webster, P.S. report on our financial statements
has not contained an
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adverse opinion or disclaimer of opinion or was qualified or
modified, as to uncertainty, audit, scope, or accounting
principals. The decision to change accountants was not
recommended or approved by any audit committee or similar
committee of the Board of Directors or by the Board of
Directors. During the two most recent fiscal years and during
any subsequent interim period preceding the declination, there
were no disagreements with Williams & Webster, P.S. on any
manner of accounting principals or practice, financial
statement disclosure or auditing scope or procedure, which
disagreements, if not resolved to the satisfaction of Williams
& Webster, P.S., would have caused it to make a reference to
the subject matter of the disagreements in connection with its
report. The reason for the declination is that our business
and administration is located in Miami, Florida, as opposed to
Spokane, Washington, and as such we engaged the accounting and
consulting firm of BDO Seidman, LLP to serve as our
independent accountants and prepare the audited statements for
the upcoming fiscal year.
Item 5. Other Events.
On April 25, 2000, Nexland, Inc., employed Enrique Dillon as
Chief Executive Officer under a two year contract subject to
renewal. Compensation includes a base salary of $150,000 per
year subject to the company raising one million dollars n
financing, and 1,170,000 shares of common stock. Mr. Dillon
served as President and Chief Executive Officer of Dinexim
Corp. from 1995 to 1998. From 1998 to April 2000, Enrique
Dillon was engaged as the President of Big Blue, Inc., a
consultant in the management and technology field for Latin
America.
On May 1, 2000, Martin Dell'Oca was employed as the Chief
Financial Officer of Nexland, Inc. under a two year contract
subject to renewal. Compensation includes a base salary of
$100,000 per year. Upon the company raising One million
dollars in financing, the base salary increases to $120,000.
In addition, Martin Dell'Oca receives 200,000 shares of
Company common stock. From 1995 to May 1998, Mr. Dell'Oca was
the Chief Financial Officer of Dinexim. In May 1998, Martin
Dell'Oca assumed the position of Chief Financial Officer of
CHS Dinexim after Dinexim was sold to CHS.
Item 6. Resignation of Registrant's Director.
Not applicable
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
Employment Contract of Enrique Dillon
Employment Contract of Martin Dell'Oca
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Signatures
Pursuant to the requirement of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
NEXLAND, INC.
By: /s/ Martin Dell'Oca
-------------------------------------
Martin Dell' Oca, Chief Financial Officer
Dated: May 12, 2000
Nexland, Inc.
1101 Brickell Avenue
Suite 702, North Tower
Miami, Florida 33131
[LETTERHEAD OF WILLIAMS & WEBSTER, P.S.]
May 9, 2000
Securities and Exchange Commission
450 Fifth Street SW
Washington, D.C. 20549
Re: Nexland, Inc.
commission File Number 333-3074
Dear Sirs:
We are in agreement with the statements made by the above registrant in its Form
8-K dated May 9, 2000.
Our independent auditor's report on the financial statements of Nexland, Inc.
for the years ended December 31, 1999 has contained no adverse opinion or
disclaimer of opinion, nor was it modified as uncertainty, audit scope, or
accounting principles.
There were no disagreements with Nexland, Inc. on any matter of accounting
principles or practices, financial statement disclosure, or auditing scope or
procedure.
Sincerely,
/s/ Williams & Webster, P.S.
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Williams & Webster, P.S.
Spokane, Washington
EXECUTIVE EMPLOYMENT AGREEMENT
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AGREEMENT, dated as of April 25, 2000 (the "Agreement"), by and between
Nexland, Inc., an Arizona corporation having its principal offices at 1101
Biscayne Boulevard, Suite 702 North Tower, Miami, Florida 33180 (the "Company"),
and Enrique Dillon (the "Executive").
WHEREAS, the Company desires to employ and retain the Executive for the
term specified herein in order to advance the business and interests of the
Company on the terms and conditions set forth herein; and
WHEREAS, the Executive desires to provide his services to the Company
in such capacities, on and subject to the terms and conditions hereof;
WHEREAS, the Company desires to provide the Executive with certain
options to acquire stock in the Company in order that the Executive may have the
opportunity to participate in the growth and performance of the Company, as set
forth herein;
NOW, THEREFORE, the parties hereto, intending to be legally bound,
agree as follows:
1. Employment and Term. Subject to all of the terms and conditions
hereof, the Company does hereby employ and agree to employ the Executive as its
Chief Executive Officer for and during the Employment Term, as defined below,
and the Executive does hereby accept such employment. The term of employment
shall commence on April 25, 2000 (the "Effective Date") and shall continue until
April 25, 2002 unless earlier terminated as herein provided (the "Employment
Term"), and thereafter shall be renewed for additional terms of one (1) year,
unless either party provides the other with notice, as provided for herein, at
least ninety (90) days prior to the date the Employment Term would otherwise
renew, of that party's intention not to so renew such term.
2. Duties of Executive. The Executive shall, during the Employment Term
hereunder, perform the executive and administrative duties, functions and
privileges incumbent with the position of Chief Executive Officer and such other
duties as reasonably determined by the Board of Directors of the Company from
time to time; provided, however, that such duties and functions shall exclude
those duties and functions assigned to the President of the Company by the Board
of Directors. The Executive shall report to the Board of Directors of the
Company, and if so elected, the Executive shall serve as a member of the Board
of Directors. The Executive agrees to serve the Company faithfully,
conscientiously and to the best of his ability, and to devote substantially all
of his business time to the business and affairs of the Company (and, if
requested by the Board of Directors, any subsidiary or affiliate of the Company)
so as to promote the profit, benefit and advantage of the Company and, if
applicable, any subsidiaries or affiliates of the Company. The Executive agrees
to accept the compensation to be made to him under this Agreement as full and
complete compensation for the services required to be performed by, and the
covenants of, the Executive under this Agreement.
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3. Location and Travel. The Executive shall not be required to relocate
outside the greater Miami-Fort Lauderdale metropolitan area without his consent.
The Executive acknowledges, however, that significant domestic and international
travel may be required as part of his duties hereunder; and the Executive agrees
to undertake such travel as may be reasonably required by the business of the
Company from time to time.
4. Compensation.
4.1. Base Salary. The Executive shall not be paid Base Salary (as
defined herein) until such time as the Company shall have obtained equity
investments and/or debt financing totaling in the aggregate at least One Million
Dollars ($1,000,000)(the "Funding Goal") or sixty (60) days from the Effective
Date, whichever shall occur first. In the event the Funding Goal is not achieved
prior to the expiration of such 60 day period, the Executive's Base Salary shall
be paid as the Company's finances shall reasonably allow (as determined by the
Board of Directors) and any amount not paid shall accrue and be paid on a
priority basis; thereafter, the Executive shall be paid Base Salary at the
annual rate of One Hundred Fifty Thousand Dollars ($150,000.00) per year. All
compensation shall be made in accordance with the standard payroll practices of
the Company, and whichever compensation rate is applicable at a particular time
is referred to herein as the "Base Salary."
4.2. Stock and Stock Rights. As additional consideration for the
Executive's duties and obligations, the Company hereby conveys to the Executive
One Million One Hundred Seventy Thousand (1,170,000) shares of restricted common
stock of the Company (the "Executive Stock"), subject to the following
conditions:
4.2.1. Risk of Forfeiture. Title to the Executive Stock shall
become immediately vested in the Executive on the date hereof, however the
Executive Stock shall be forfeited by the Executive if the Executive resigns
from this Agreement prior to the expiration of the Employment Term (other than
any resignation pursuant to Section 5.2 hereof) or (iii) if Executive is
terminated for "cause" (as defined in Section 5.3 hereof).
4.2.2. Forfeiture Period. Except as set forth in Section 4.2.3
hereof, the Executive Stock may not be sold, transferred, assigned, pledged, or
otherwise encumbered or disposed of during the period commencing on the
Effective Date through and including January 1, 2002 (the "Forfeiture Period.")
Certificates representing the Executive Stock shall be held in escrow during the
Forfeiture Period.
4.2.3. Termination of Risk of Forfeiture and of Forfeiture
Period. Upon the occurrence of any of the following acts or events, the risk of
forfeiture in Section 4.2.1 hereof and the Forfeiture Period in Section 4.2.2
hereof shall immediately terminate without any further action by the Executive:
(a) if the Executive is terminated by the Company for any
reason other than Cause (as defined in Section 5.3 hereof);
(b) if the Company undergoes a Change of Control as defined in
Section 6.1 hereof;
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(c) a sale of all or substantially all of the Company's
assets; or
(d) a public offering of the common stock of the Company
valued at greater than Ten Million Dollars ($10,000,000.00).
4.2.4. Piggy-back Registration. If at any time the Company
subsequent to the expiration or termination of the Forfeiture Period proposes to
register any of its securities under the Securities Act or 1933, as amended, or
pursuant to the Exchange Act (collectively, the "Securities Acts"), whether or
not for sale for its own account, and such registration includes the
registration of all or a portion of the shares held by the Company's officers,
directors or shareholders of more than five (5%) percent of the issued and
outstanding stock of the Company ("Registering Shareholders"), it will each such
time give prompt written notice to the Executive of its intention to do so( the
"Registration Notice"). Upon the written request of the Executive, made within
fifteen (15) business days after the receipt of the Registration Notice, the
Company shall, at its expense, use its best efforts to effect the registration
under the Securities Acts of the same percentage of the Executive's Shares in
the registration statement that relates to the securities that the Company
proposes to register that is being registered for the Registering Shareholders,
subject to the Company's subsequent determination in its sole and absolute
discretion to cancel or delay any such registration.
4.3. Regular Benefits. The Executive shall be entitled to
participate in any health insurance, accident insurance, hospitalization
insurance, life insurance, pension, or any other similar plan or benefit
provided by the Company to its executives or employees generally, if and to the
extent that the Executive is eligible to participate in accordance with the
provisions of any such insurance, plan or benefit generally (such benefits,
collectively, the "Regular Benefits").
4.4. Vacation. The Executive shall be entitled to up to three (3)
weeks paid vacation per year, such vacation to be taken at times mutually
agreeable to the Executive and the Company. The Executive shall further be
entitled to the number of paid holidays, and leaves for illness or temporary
disability in accordance with the policies of the Company for its senior
executives.
4.5. Term Life Insurance. The Company shall have the right from time
to time to purchase, modify or terminate insurance policies on the life of the
Executive for the benefit of the Company in such amount as the Company shall
determine in its sole discretion. In connection therewith the Executive shall,
at such time or times and at such place or places as the Company may reasonably
direct, submit himself to such physical examinations and execute and deliver
such documents as the Company may deem necessary or desirable; provided,
however, that the eligibility of the Executive for, or the availability of, such
insurance shall not be deemed to be a condition of continued employment
hereunder. The Executive makes no representation to the Company as to his
current or future eligibility for insurance.
4.6. Expense Reimbursement. The Company shall reimburse the
Executive for all expenses reasonably incurred by him in connection with the
performance of his duties hereunder and the business of the Company upon the
submission to the Company of appropriate receipts therefor, in accordance with
the expense reimbursement policy of the Company.
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5. Termination and Severance Arrangements.
5.1. Termination by the Company. The Company may terminate this
Agreement at any time on or after April 25, 2001 by providing at least thirty
(30) days advance written notice to the Executive. In the event that the Company
terminates this Agreement (a) on or after April 25, 2001, (b) other than in
connection with a Change of Control, in which event Section 6 shall apply, and
(c) other than for Cause, in which event Section 5.3 shall apply, the Company
shall, notwithstanding such termination, in consideration for all of the
undertakings and covenants of the Executive contained herein, continue to pay to
the Executive the Base Salary and the Regular Benefits for a period of twelve
(12) months from the date of such termination. In no event however, shall the
continuation of such payments during such post-termination period be deemed to
be employment hereunder for purposes of calculating any bonus due to the
Executive or for purposes of determining the vesting or exercise period of any
stock options granted hereunder, or otherwise.
5.2. Termination by Executive. The Executive may terminate his
employment for Good Reason and receive the payments and benefits specified in
Section 5.1 in the same manner as if the Company had terminated his employment
without Cause. For purposes of this Agreement, "Good Reason" will exist if any
one or more of the following occur:
5.2.1. Failure by the Company to honor any of its material
obligations under this Agreement, including, without limitation, its obligations
under Section 4 (Compensation), Section 10 (Indemnification), Section 9
(Director's and Officer's Liability Insurance; Tail Coverage), and Section 12.5
(Successor Obligations).
5.3. Termination for Cause. Notwithstanding the Employment Term, the
Company may terminate the Executive for Cause, as defined below, upon a
resolution duly adopted by the affirmative vote of not less than a majority of
the entire membership of the Board of Directors (excluding the Executive, if a
director) at a meeting called and held for such purpose (after reasonable notice
to the Executive and an opportunity for the Executive, together with his
counsel, to be heard before the Board of Directors), finding that in the good
faith opinion of the Board of Directors there shall have been Cause, as defined
below, to terminate the Executive and specifying the particulars thereof in
detail. In the event that the employment of the Executive is terminated by the
Company for Cause, no severance or other post-termination payment shall be due
or payable by the Company to the Executive (except solely such Base Salary or
other payments as may have been accrued but not yet paid prior to such
termination). For purposes hereof, "Cause" shall mean: (a) the conviction with
respect to any felony or misdemeanor involving theft, fraud, dishonesty or
misrepresentation; (b) any material misappropriation, embezzlement or conversion
of the Company's or any of its subsidiary's or affiliate's property by the
Executive; (c) willful misconduct by the Executive in respect of the material
duties or obligations of the Executive under this Agreement; or (d) a material
breach by the Executive of any of his material obligations hereunder, after
written notice thereof and a reasonable opportunity of thirty (30) days to cure
the same, provided that the same is not caused by the physical disability
including mental disease or defect of the Executive, in which event Section 5.4
shall apply.
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5.4. Death or Disability. In the event that the employment of the
Executive by the Company is terminated by reason of the death of the Executive
or by reason of medical or psychiatric disability which prevents the Executive
from satisfactorily performing a material portion of his duties for ninety (90)
consecutive calendar days (a "Disability"), the Company shall, promptly upon
such termination, pay the Executive an amount equal to six (6) months of Base
Salary, in a single lump sum.
6. Parachute Provisions.
6.1. Change of Control. For purposes of this Agreement, a "Change of
Control" shall be deemed to have occurred upon the occurrence of any one or more
of the following events.
6.1.1. Any "person" or "group" (as such terms are used in
connection with Section 13(d) and 14(d)(2) of the Securities Exchange Act of
1934 (the "Exchange Act")) but excluding the Executive or any employee benefit
plan of the Company (a) is or becomes the "beneficial owner" (as defined in Rule
l3d-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 entitled to vote for the election of
directors, or (b) acquires by proxy or otherwise fifty percent (50%) or more of
the combined voting securities of the Company having the right to vote for the
election of directors of the Company, for any merger or consolidation of the
Company, or for any other matter; provided, however, that a Change of Control
shall not be deemed to have occurred solely by reason of the public ownership of
fifty percent (50%) or more of the Common Stock of the Company;
6.1.2. There shall be consummated without the consent of the
Executive (a) any consolidation, merger or recapitalization of the Company or
any similar transaction involving the Company, whether or not the Company is the
continuing or surviving corporation, (b) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all, or
substantially all of the assets of the Company or (c) the adoption of a plan of
complete liquidation of the Company (whether or not in connection with the sale
of all or substantially all of the Company's assets) or a series of partial
liquidations of the Company that is de jure or de facto part of a plan of
complete liquidation of the Company; provided that the divestiture of less than
substantially all of the assets of the Company in one transaction or a series of
related transactions, whether effected by sale, lease, exchange, spin-off, sale
of the stock or merger of a Subsidiary or otherwise, or a transaction solely for
the purpose of reincorporating the Company in another jurisdiction, shall not
constitute a "Change in Control."
6.2. Rights on Change in Control. If within one year after, or
ninety (90) days prior to, a Change in Control of the Company, the Company shall
terminate the Executive's employment other than by reason of the Executive's
death or Disability or for Cause, the Company shall pay to the Executive as
compensation for services rendered, not later than the fifth business day after
the date of termination:
6.2.1. The Executive's Base Salary through the date of
termination, any Regular Benefits and incentive compensation for the fiscal year
in which the termination occurs
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in accordance with any arrangements then existing with the Executive and
proportionate to the period of the fiscal year which has expired prior to the
termination; and
6.2.2. A lump sum severance payment equal to two (2) times the
Executive's average annual compensation during the Employment Term, as defined
in the Internal Revenue Code (the "Code") provided that in no event shall Total
Payments, as defined in the Code, exceed two (2) times the Executive's Base
Amount as such term is defined in Section 28OG of the Code. The Executive's Base
Amount shall be determined in accordance with temporary or final regulations
promulgated under Section 28OG of the Code then in effect, if any.
6.2.3. In addition, upon a Change in Control, the risk of
forfeiture and Forfeiture Period shall immediately terminate.
7. Proprietary Rights.
7.1. Non Competition. The Executive covenants and agrees that for so
long as he shall be employed by the Company and for a period of one year from
the date of the termination of such employment for any reason (such period of
time the "Restricted Period") the Executive shall not directly or indirectly,
own, manage, control, operate invest in or become principal of employee of,
director of, or consultant to, any business, entity or venture which is
competitive with the business of the Company as conducted at such time;
provided, however, that it shall not be a violation of this Agreement for the
Executive to have beneficial ownership of less than 3% of the outstanding amount
of any class of securities of any enterprise (but without otherwise
participating in the activities of such enterprise) if such securities are
listed on a national securities exchange or quoted on an inter-dealer quotation
system.
7.2. Confidentiality. The Executive recognizes and acknowledges that
certain confidential business and technical information used by the Employee in
connection with his duties hereunder that includes, without limitation, certain
confidential and proprietary information relating to the designing, development,
construction and marketing of computer hardware, is a valuable and unique asset
of the Company. Executive agrees that he shall at all times maintain the
confidentiality of the proprietary information and trade secrets of the Company,
and that he shall during the Restricted Period refrain from disclosing any such
information to the disadvantage of the Company.
7.2.1. During the Restricted Period the Executive shall not,
directly or indirectly (a) solicit, in competition with the Company, any person
who is a customer of any business conducted by the Company, or (b) in any manner
whatsoever induce, or assist others to induce, any supplier of the Company to
terminate its association with such entity or do anything, directly or
indirectly, to interfere with the business relationship between the Company, and
any of their respective current or prospective suppliers.
7.2.2. During the Restricted Period the Executive shall not,
directly or indirectly, solicit or induce any employee of the Company to
terminate his or her employment for any purpose, including without limitation,
in order to enter into employment with any entity which competes with any
business conducted by the Company.
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7.3. Ownership by Company. The Executive acknowledges and agrees
that any of his work product created, produced or conceived in connection with
his association with the Company shall be deemed work for hire and shall be
deemed owned exclusively by the Company. The Executive agrees to execute and
deliver all documents required by the Company to document or perfect the
Company's proprietary rights in and to the Executive's work product.
7.4. Remedies. It is expressly understood and agreed that the
services to be rendered hereunder by the Executive are special, unique, and of
extraordinary character, and in the event of the breach by the Executive of any
of the terms and conditions of this Agreement on his part to be performed
hereunder, or in the event of the breach or threatened breach by the Executive
of the terms and provisions of this Section 7 of this Agreement, then the
Company shall be entitled, if it so elects, to institute and prosecute any
proceedings in any court of competent jurisdiction, either in law or equity, for
such relief as it deems appropriate, including without limiting the generality
of the foregoing, any proceedings, to obtain damages for any breach of this
Agreement, or to enforce the specific performance thereof by the Executive.
8. Market Standoff Agreement. The Executive hereby agrees that if so
requested by the Company or by any representative of any underwriters in
connection with any registration of the offering of any securities of the
Company under the Securities Act, the Executive shall not sell or otherwise
transfer any securities of the Company during the ninety-day period following
the effective date of a registration statement of the Company filed under the
Securities Act.
9. Director's and Officer's Liability Insurance; Tail Coverage. To
protect Executive from any liability, loss, claims, damages, or costs, including
legal fees and costs, the Company shall purchase, on the terms set forth in
Section 9.1, and maintain director's and officer's liability insurance (the "D&O
Insurance") which shall pay, on behalf of Executive, any amount which Executive
is legally obligated to pay, or for which Company has indemnified the Executive,
as a result of any actual or alleged act, omission, or error, except for
intentional fraud or intentional misrepresentations made by Executive, in an
amount not less than Three Million Dollars ($3,000,000.00), or in such amount as
is later agreed upon by Executive and Company. Said policy shall cover all acts
or omissions of Executive that occurred (or allegedly should have occurred)
between the Effective Date and the third anniversary of the date of termination
of this Agreement.
9.1. Company's Premium Payment Obligation. The Company shall pay the
monthly premium for the D&O Insurance until such time as the Company has
achieved the Funding Goal, at which time the Company shall immediately pay the
remaining balance of the annual premium.
10. Indemnification. As an employee, officer and director of the
Company, the Executive shall be indemnified against all liabilities, damages,
fines, costs and expenses by the Company in accordance with the indemnification
provisions of the Company's Articles of Incorporation as in effect on the date
hereof, and otherwise to the fullest extent to which employees, officers and
directors of a corporation organized under the laws of the state of
incorporation of the Company may be indemnified pursuant to the laws of such
state, as the same may be amended from time to time (or any subsequent statute
of similar tenor and effect), subject to the terms and conditions of such
statute.
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11. Independent Representation. The Executive acknowledges that he has
had the opportunity to seek independent counsel and tax advice in connection
with the execution of this Agreement, and the Executive represents and warrants
to the Company (a) that he has sought such independent counsel and advice as he
has deemed appropriate in connection with the execution hereof and the
transactions contemplated hereby, and (b) that he has not relied on any
representation of the Company as to tax matters, or as to the consequences of
the execution hereof.
11.1. Neutral Construction. No party may rely on any drafts of this Agreement in
any interpretation of the Agreement. Each party to this Agreement has reviewed
this Agreement and has participated in its drafting and, accordingly, no party
shall attempt to invoke the normal rule of construction to the effect that
ambiguities are to be resolved against the drafting party in any interpretation
of this Agreement.
11.2. Attorney's Fees. In the event that either party hereto
commences litigation against the other to enforce such party's rights hereunder,
the prevailing party shall be entitled to recover all costs, expenses and fees,
including reasonable attorneys' fees (including in-house counsel), paralegals,
fees, and legal assistants' fees through all appeals.
12. General.
12.1. No Brokers. Each of the parties to this Agreement represents
and warrants to the other that it has not utilized the services of any finder,
broker or agent. Each of the parties agrees to indemnify the other against any
and all liabilities to any person, firm or corporation claiming any fee or
commission of any kind on account of services rendered on behalf of such party
in connection with the transactions contemplated by this Agreement.
12.2. Applicable Law. This document shall in all respects be
governed by the laws of the State of Florida. The parties acknowledge that
substantially all of the negotiations relating to this Agreement were conducted
in Florida, and that this Agreement has been executed by both parties in
Florida. Any legal suit, action or proceeding against any party hereto arising
out of or relating to this Agreement shall be instituted in a federal or state
court in Miami-Dade County, Florida, and each party hereto waives any objection
which it may now or hereafter have to the laying of venue of any such suit,
action or proceeding and each party hereto irrevocably submits to the
jurisdiction of any such court in any suit, action or proceeding.
12.3. Rights Absolute. The Company's obligation to pay the Executive
the compensation specified herein shall be absolute and unconditional and shall
not be affected by any circumstance, including, without limitation, any setoff,
counterclaim, defense or other right which the Company may have against the
Executive or anyone else. All amounts payable by the Company hereunder shall be
paid without notice or demand.
12.4. No Offset. Except as expressly provided herein, the Company
waives all rights it my now have or may hereafter have conferred upon it, by
statute or otherwise, to terminate, cancel or rescind this Agreement in whole or
in part. The Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment, and if
Executive obtains such other employment, any compensation earned by
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Executive pursuant thereto shall not be applied to mitigate any payment made to
Executive pursuant to this Agreement.
12.5. Successor Obligations. The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company to
expressly assume by written agreement and to agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place.
12.6. Survival. The parties hereto agree that the covenants
contained in Section 7 hereof shall survive any termination of employment by the
Executive and any termination of this Agreement. In addition, the parties hereto
agree that any compensation or right which shall have accrued to the Executive
as of the date of any termination of employment or termination hereof shall
survive any such termination and shall be paid when due to the extent accrued on
the date of such termination.
12.7. Assignability. All of the terms and provisions contained
herein shall inure to the benefit of and shall be binding upon the parties
hereto and their respective heirs, personal representatives, successors and
assigns. The obligations of the Executive however, may not be assigned, and the
Executive may not, without the Company's written consent, assign, transfer,
convey, pledge, encumber, hypothecate or otherwise dispose of this Agreement or
any interest therein. Any such attempted assignment or disposition shall be null
and void and without effect. The Company and the Executive agree that this
Agreement and all of the Company's rights and obligations hereunder may be
assigned or transferred by the Company to and may be assumed by and become
binding upon and may inure to the benefit of any affiliate of or successor to
the Company. The term "successor" shall mean, with respect to the Company or any
of its subsidiaries, and any other corporation or other business entity which,
by merger, consolidation, purchase of the assets, or otherwise, acquires all or
a material part of the assets of the Company. Any assignment by the Company of
its rights and obligations hereunder to any affiliate of or successor shall not
be considered a termination of employment for purposes of this Agreement.
12.8. Notices. Any and all notices required or desired to be given
hereunder by any party shall be in writing and shall be validly given or made to
another party if delivered either personally, by telex, facsimile transmission,
same-day delivery service, overnight expedited delivery service, or if deposited
in the United States Mail, certified or registered, postage prepaid, return
receipt requested. If notice is served personally, notice shall be deemed
effective upon receipt. If notice is served by telex or by facsimile
transmission, notice shall be deemed effective upon transmission, provided that
such notice is confirmed in writing by the sender within one day after
transmission. If notice is served by same day delivery service or overnight
expedited delivery service, notice shall be deemed effective the day after it is
sent, and if notice is given by United States mail, notice shall be deemed
effective five days after it is sent. In all instances, notice shall be sent to
the parties at the following addresses:
If to the Company: Nexland, Inc.
1101 Biscayne Boulevard, 702 North Tower
Miami, Florida 33131
Fax: (305) 937-3877
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If to the Executive: Enrique Dillon
----------------------
________, Florida _______
Fax: (___) ___-____
Any party may change its address for the purpose of receiving notices by a
written notice given to the other party.
12.9. Modifications or Amendments. No amendment, change or
modification of this document shall be valid nless in writing and signed by all
of the parties hereto.
12.10. Waiver. No reliance upon or waiver of one or more provisions
of this Agreement shall constitute a aiver of any other provisions hereof.
12.11. Severability. If any provision of this Agreement as applied
to either party or to any circumstances shall be adjudged by a court of
competent jurisdiction to be void or unenforceable, the same shall in no way
affect any other provision of this Agreement or the validity or enforceability
of this Agreement. If any court construes any of the provisions to be
unreasonable because of the duration of such provision or the geographic or
other scope thereof, such court may reduce the duration or restrict the
geographic or other scope of such provision and enforce such provision as so
reduced or restricted.
12.12. Separate Counterparts. This document may be executed in one
or more separate counterparts, each of which, when so executed, shall be deemed
to be an original. Such counterparts shall, together, constitute and shall be
one and the same instrument.
12.13. Headings. The captions appearing at the commencement of the
sections hereof are descriptive only and are for convenience of reference.
Should there be any conflict between any such caption and the section at the
head of which it appears, the substantive provisions of such section and not
such caption shall control and govern in the construction of this document.
12.14. Specific Performance. It is agreed that the rights granted to
the parties hereunder are of a special and unique kind and character and that,
if there is a breach by any party of any material provision of this Agreement,
the other party would not have any adequate remedy at law. It is expressly
agreed, therefore, that the rights of the parties hereunder may be enforced by
an action for specific performance and other equitable relief.
12.15. Further Assurances. Each of the parties hereto shall execute
and deliver any and all additional papers, documents and other assurances, and
shall do any and all acts and things reasonably necessary in connection with the
performance of their obligations hereunder and to carry out the intent of the
parties hereto.
12.16. Entire Agreement. This Agreement constitutes the entire
understanding and agreement of the parties with respect to the subject matter of
this Agreement, and any and all prior agreements or representations are hereby
terminated and canceled in their entirety.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed this 25th day of April, 2000, effective as of the date first above
written.
NEXLAND, INC., an Arizona corporation
By: /s/ Greg Levine
--------------------------------
Name: Greg Levine
Title: President
-----------------------------------
ENRIQUE DILLON
EXECUTIVE EMPLOYMENT AGREEMENT
------------------------------
AGREEMENT, effective as of May 1, 2000 (the "Agreement"), by and
between Nexland, Inc., an Arizona corporation having its principal offices at
1101 Biscayne Boulevard, Suite 702 North Tower, Miami, Florida 33180 (the
"Company"), and Martin E. Dell'Oca (the "Executive").
WHEREAS, the Company desires to employ and retain the Executive for the
term specified herein in order to advance the business and interests of the
Company on the terms and conditions set forth herein; and
WHEREAS, the Executive desires to provide his services to the Company
in such capacities, on and subject to the terms and conditions hereof;
WHEREAS, the Company desires to provide the Executive with certain
options to acquire stock in the Company in order that the Executive may have the
opportunity to participate in the growth and performance of the Company, as set
forth herein;
NOW, THEREFORE, the parties hereto, intending to be legally bound,
agree as follows:
1. Employment and Term. Subject to all of the terms and conditions
hereof, the Company does hereby employ and agree to employ the Executive as its
Chief Financial Officer for and during the Employment Term, as defined below,
and the Executive does hereby accept such employment. The term of employment
shall commence on May 1, 2000 (the "Effective Date") and shall continue until
May 1, 2002 unless earlier terminated as herein provided (the "Employment
Term"), and thereafter shall be renewed for additional terms of one (1) year,
unless either party provides the other with notice, as provided for herein, at
least ninety (90) days prior to the date the Employment Term would otherwise
renew, of that party's intention not to so renew such term.
2. Duties of Executive. The Executive shall, during the Employment Term
hereunder, perform the executive and administrative duties, functions and
privileges incumbent with the position of Chief Financial Officer and such other
duties as reasonably determined by the Chief Executive Officer and the Board of
Directors of the Company from time to time. The Executive shall report to the
Chief Executive Officer of the Company, and if so elected, the Executive shall
serve as a member of the Board of Directors. The Executive agrees to serve the
Company faithfully, conscientiously and to the best of his ability, and to
devote substantially all of his business time to the business and affairs of the
Company (and, if requested by the Chief Executive Officer and/or the Board of
Directors, any subsidiary or affiliate of the Company) so as to promote the
profit, benefit and advantage of the Company and, if applicable, any
subsidiaries or affiliates of the Company. The Executive agrees to accept the
compensation to be made to him under this Agreement as full and complete
compensation for the services required to be performed by, and the covenants of,
the Executive under this Agreement.
3. Location and Travel. The Executive shall not be required to relocate
outside the greater Miami-Fort Lauderdale metropolitan area without his consent.
The Executive acknowledges, however, that significant domestic and international
travel may be required as part of his duties hereunder; and the Executive agrees
to undertake such travel as may be reasonably required by the business of the
Company from time to time.
<PAGE>
4. Compensation.
4.1. Base Salary. The Executive shall be paid Base Salary (as defined
herein) at the annual rate of One Hundred Thousand Dollars ($100,000.00) per
year until such time as the Company shall have obtained equity investments
and/or debt financing totaling in the aggregate at least One Million Dollars
($1,000,000) (the "Funding Goal"). In the event the Funding Goal is achieved,
the Executive shall thereafter be paid Base Salary at the annual rate of One
Hundred Twenty Thousand Dollars ($120,000.00) per year. All compensation shall
be made in accordance with the standard payroll practices of the Company, and
whichever compensation rate is applicable at a particular time is referred to
herein as the "Base Salary."
4.2. Stock and Stock Rights. As additional consideration for the
Executive's duties and obligations, the Company hereby conveys to the Executive
Two Hundred Thousand (200,000) shares of restricted common stock of the Company
(the "Executive Stock"), subject to the following conditions:
4.2.1. Risk of Forfeiture. Title to the Executive Stock shall become
immediately vested in the Executive on the date hereof, however the Executive
Stock shall be forfeited by the Executive if the Executive resigns from this
Agreement prior to the expiration of the Employment Term (other than any
resignation pursuant to Section 5.2 hereof) or (iii) if Executive is terminated
for "cause" (as defined in Section 5.3 hereof).
4.2.2. Forfeiture Period. Except as set forth in Section 4.2.3
hereof, the Executive Stock may not be sold, transferred, assigned, pledged, or
otherwise encumbered or disposed of during the period commencing on the
Effective Date through and including January 1, 2002 (the "Forfeiture Period.")
Certificates representing the Executive Stock shall be held in escrow during the
Forfeiture Period.
4.2.3. Termination of Risk of Forfeiture and of Forfeiture Period.
Upon the occurrence of any of the following acts or events, the risk of
forfeiture in Section 4.2.1 hereof and the Forfeiture Period in Section 4.2.2
hereof shall immediately terminate without any further action by the Executive:
(a) if the Executive is terminated by the Company for any reason
other than Cause (as defined in Section 5.3 hereof);
(b) if the Company undergoes a Change of Control as defined in
Section 6.1 hereof;
(c) a sale of all or substantially all of the Company's assets;
or
(d) a public offering of the common stock of the Company valued
at greater than Ten Million Dollars ($10,000,000.00).
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<PAGE>
4.2.4. Piggy-back Registration. If at any time the Company
subsequent to the expiration or termination of the Forfeiture Period proposes to
register any of its securities under the Securities Act or 1933, as amended, or
pursuant to the Exchange Act (collectively, the "Securities Acts"), whether or
not for sale for its own account, and such registration includes the
registration of all or a portion of the shares held by the Company's officers,
directors or shareholders of more than five (5%) percent of the issued and
outstanding stock of the Company ("Registering Shareholders"), it will each such
time give prompt written notice to the Executive of its intention to do so( the
"Registration Notice"). Upon the written request of the Executive, made within
fifteen (15) business days after the receipt of the Registration Notice, the
Company shall, at its expense, use its best efforts to effect the registration
under the Securities Acts of the same percentage of the Executive's Shares in
the registration statement that relates to the securities that the Company
proposes to register that is being registered for the Registering Shareholders,
subject to the Company's subsequent determination in its sole and absolute
discretion to cancel or delay any such registration.
4.3. Regular Benefits. The Executive shall be entitled to participate
in any health insurance, accident insurance, hospitalization insurance, life
insurance, pension, or any other similar plan or benefit provided by the Company
to its executives or employees generally, if and to the extent that the
Executive is eligible to participate in accordance with the provisions of any
such insurance, plan or benefit generally (such benefits, collectively, the
"Regular Benefits").
4.4. Vacation. The Executive shall be entitled to up to three (3) weeks
paid vacation per year, such vacation to be taken at times mutually agreeable to
the Executive and the Company. The Executive shall further be entitled to the
number of paid holidays, and leaves for illness or temporary disability in
accordance with the policies of the Company for its senior executives.
4.5. Term Life Insurance. The Company shall have the right from time to
time to purchase, modify or terminate insurance policies on the life of the
Executive for the benefit of the Company in such amount as the Company shall
determine in its sole discretion. In connection therewith the Executive shall,
at such time or times and at such place or places as the Company may reasonably
direct, submit himself to such physical examinations and execute and deliver
such documents as the Company may deem necessary or desirable; provided,
however, that the eligibility of the Executive for, or the availability of, such
insurance shall not be deemed to be a condition of continued employment
hereunder. The Executive makes no representation to the Company as to his
current or future eligibility for insurance.
4.6. Expense Reimbursement. The Company shall reimburse the Executive
for all expenses reasonably incurred by him in connection with the performance
of his duties hereunder and the business of the Company upon the submission to
the Company of appropriate receipts therefor, in accordance with the expense
reimbursement policy of the Company.
5. Termination and Severance Arrangements.
5.1. Termination by the Company. The Company may terminate this
Agreement at any time on or after May 1, 2001 by providing at least thirty (30)
days advance
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<PAGE>
written notice to the Executive. In the event that the Company terminates this
Agreement (a) on or after May 1, 2001, (b) other than in connection with a
Change of Control, in which event Section 6 shall apply, and (c) other than for
Cause, in which event Section 5.3 shall apply, the Company shall,
notwithstanding such termination, in consideration for all of the undertakings
and covenants of the Executive contained herein, continue to pay to the
Executive the Base Salary and the Regular Benefits for a period of twelve (12)
months from the date of such termination. In no event however, shall the
continuation of such payments during such post-termination period be deemed to
be employment hereunder for purposes of calculating any bonus due to the
Executive or for purposes of determining the vesting or exercise period of any
stock options granted hereunder, or otherwise.
5.2. Termination by Executive. The Executive may terminate his
employment for Good Reason and receive the payments and benefits specified in
Section 5.1 in the same manner as if the Company had terminated his employment
without Cause. For purposes of this Agreement, "Good Reason" will exist if any
one or more of the following occur:
5.2.1. Failure by the Company to honor any of its material
obligations under this Agreement, including, without limitation, its obligations
under Section 4 (Compensation), Section 10 (Indemnification), Section 9
(Director's and Officer's Liability Insurance; Tail Coverage), and Section 12.5
(Successor Obligations).
5.3. Termination for Cause. Notwithstanding the Employment Term, the
Company may terminate the Executive for Cause, as defined below, upon a
resolution duly adopted by the affirmative vote of not less than a majority of
the entire membership of the Board of Directors (excluding the Executive, if a
director) at a meeting called and held for such purpose (after reasonable notice
to the Executive and an opportunity for the Executive, together with his
counsel, to be heard before the Board of Directors), finding that in the good
faith opinion of the Board of Directors there shall have been Cause, as defined
below, to terminate the Executive and specifying the particulars thereof in
detail. In the event that the employment of the Executive is terminated by the
Company for Cause, no severance or other post-termination payment shall be due
or payable by the Company to the Executive (except solely such Base Salary or
other payments as may have been accrued but not yet paid prior to such
termination). For purposes hereof, "Cause" shall mean: (a) the conviction with
respect to any felony or misdemeanor involving theft, fraud, dishonesty or
misrepresentation; (b) any material misappropriation, embezzlement or conversion
of the Company's or any of its subsidiary's or affiliate's property by the
Executive; (c) willful misconduct by the Executive in respect of the material
duties or obligations of the Executive under this Agreement; or (d) a material
breach by the Executive of any of his material obligations hereunder, after
written notice thereof and a reasonable opportunity of thirty (30) days to cure
the same, provided that the same is not caused by the physical disability
including mental disease or defect of the Executive, in which event Section 5.4
shall apply.
5.4. Death or Disability. In the event that the employment of the
Executive by the Company is terminated by reason of the death of the Executive
or by reason of medical or psychiatric disability which prevents the Executive
from satisfactorily performing a material portion of his duties for ninety (90)
consecutive calendar days (a "Disability"), the Company shall, promptly upon
such termination, pay the Executive an amount equal to six (6) months of Base
Salary, in a single lump sum.
4
<PAGE>
6. Parachute Provisions.
6.1. Change of Control. For purposes of this Agreement, a "Change of
Control" shall be deemed to have occurred upon the occurrence of any one or more
of the following events.
6.1.1. Any "person" or "group" (as such terms are used in
connection with Section 13(d) and 14(d)(2) of the Securities Exchange Act of
1934 (the "Exchange Act")) but excluding the Executive or any employee benefit
plan of the Company (a) is or becomes the "beneficial owner" (as defined in Rule
l3d-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 entitled to vote for the election of
directors, or (b) acquires by proxy or otherwise fifty percent (50%) or more of
the combined voting securities of the Company having the right to vote for the
election of directors of the Company, for any merger or consolidation of the
Company, or for any other matter; provided, however, that a Change of Control
shall not be deemed to have occurred solely by reason of the public ownership of
fifty percent (50%) or more of the Common Stock of the Company;
6.1.2. There shall be consummated without the consent of the
Executive (a) any consolidation, merger or recapitalization of the Company or
any similar transaction involving the Company, whether or not the Company is the
continuing or surviving corporation, (b) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all, or
substantially all of the assets of the Company or (c) the adoption of a plan of
complete liquidation of the Company (whether or not in connection with the sale
of all or substantially all of the Company's assets) or a series of partial
liquidations of the Company that is de jure or de facto part of a plan of
complete liquidation of the Company; provided that the divestiture of less than
substantially all of the assets of the Company in one transaction or a series of
related transactions, whether effected by sale, lease, exchange, spin-off, sale
of the stock or merger of a Subsidiary or otherwise, or a transaction solely for
the purpose of reincorporating the Company in another jurisdiction, shall not
constitute a "Change in Control."
6.2. Rights on Change in Control. If within one year after, or ninety
(90) days prior to, a Change in Control of the Company, the Company shall
terminate the Executive's employment other than by reason of the Executive's
death or Disability or for Cause, the Company shall pay to the Executive as
compensation for services rendered, not later than the fifth business day after
the date of termination:
6.2.1. The Executive's Base Salary through the date of
termination, any Regular Benefits and incentive compensation for the fiscal year
in which the termination occurs in accordance with any arrangements then
existing with the Executive and proportionate to the period of the fiscal year
which has expired prior to the termination; and
6.2.2. A lump sum severance payment equal to two (2) times the
Executive's average annual compensation during the Employment Term, as defined
in the Internal Revenue Code (the "Code") provided that in no event shall Total
Payments, as defined in the Code, exceed two (2) times the Executive's Base
Amount as such term is defined in Section 28OG of the Code. The Executive's Base
Amount shall be determined in accordance with temporary or final regulations
promulgated under Section 28OG of the Code then in effect, if any.
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<PAGE>
6.2.3. In addition, upon a Change in Control, the risk of
forfeiture and Forfeiture Period shall immediately terminate.
7. Proprietary Rights.
7.1. Non Competition. The Executive covenants and agrees that for so
long as he shall be employed by the Company and for a period of one year from
the date of the termination of such employment for any reason (such period of
time the "Restricted Period") the Executive shall not directly or indirectly,
own, manage, control, operate invest in or become principal of employee of,
director of, or consultant to, any business, entity or venture which is
competitive with the business of the Company as conducted at such time;
provided, however, that it shall not be a violation of this Agreement for the
Executive to have beneficial ownership of less than 3% of the outstanding amount
of any class of securities of any enterprise (but without otherwise
participating in the activities of such enterprise) if such securities are
listed on a national securities exchange or quoted on an inter-dealer quotation
system.
7.2. Confidentiality. The Executive recognizes and acknowledges that
certain confidential business and technical information used by the Employee in
connection with his duties hereunder that includes, without limitation, certain
confidential and proprietary information relating to the designing, development,
construction and marketing of computer hardware, is a valuable and unique asset
of the Company. Executive agrees that he shall at all times maintain the
confidentiality of the proprietary information and trade secrets of the Company,
and that he shall during the Restricted Period refrain from disclosing any such
information to the disadvantage of the Company.
7.2.1. During the Restricted Period the Executive shall not,
directly or indirectly (a) solicit, in competition with the Company, any person
who is a customer of any business conducted by the Company, or (b) in any manner
whatsoever induce, or assist others to induce, any supplier of the Company to
terminate its association with such entity or do anything, directly or
indirectly, to interfere with the business relationship between the Company, and
any of their respective current or prospective suppliers.
7.2.2. During the Restricted Period the Executive shall not,
directly or indirectly, solicit or induce any employee of the Company to
terminate his or her employment for any purpose, including without limitation,
in order to enter into employment with any entity which competes with any
business conducted by the Company
7.3. Ownership by Company. The Executive acknowledges and agrees that
any of his work product created, produced or conceived in connection with his
association with the Company shall be deemed work for hire and shall be deemed
owned exclusively by the Company. The Executive agrees to execute and deliver
all documents required by the Company to document or perfect the Company's
proprietary rights in and to the Executive's work product.
6
<PAGE>
7.4. Remedies. It is expressly understood and agreed that the services
to be rendered hereunder by the Executive are special, unique, and of
extraordinary character, and in the event of the breach by the Executive of any
of the terms and conditions of this Agreement on his part to be performed
hereunder, or in the event of the breach or threatened breach by the Executive
of the terms and provisions of this Section 7 of this Agreement, then the
Company shall be entitled, if it so elects, to institute and prosecute any
proceedings in any court of competent jurisdiction, either in law or equity, for
such relief as it deems appropriate, including without limiting the generality
of the foregoing, any proceedings, to obtain damages for any breach of this
Agreement, or to enforce the specific performance thereof by the Executive.
8. Market Standoff Agreement. The Executive hereby agrees that if so
requested by the Company or by any representative of any underwriters in
connection with any registration of the offering of any securities of the
Company under the Securities Act, the Executive shall not sell or otherwise
transfer any securities of the Company during the ninety-day period following
the effective date of a registration statement of the Company filed under the
Securities Act.
9. Director's and Officer's Liability Insurance; Tail Coverage. To
protect Executive from any liability, loss, claims, damages, or costs, including
legal fees and costs, the Company shall purchase, on the terms set forth in
Section 9.1, and maintain director's and officer's liability insurance (the "D&O
Insurance") which shall pay, on behalf of Executive, any amount which Executive
is legally obligated to pay, or for which Company has indemnified the Executive,
as a result of any actual or alleged act, omission, or error, except for
intentional fraud or intentional misrepresentations made by Executive, in an
amount not less than Three Million Dollars ($3,000,000.00), or in such amount as
is later agreed upon by Executive and Company. Said policy shall cover all acts
or omissions of Executive that occurred (or allegedly should have occurred)
between the Effective Date and the third anniversary of the date of termination
of this Agreement.
9.1. Company's Premium Payment Obligation. The Company shall pay
the monthly premium for the D&O Insurance h time as the Company has achieved the
Funding Goal, at which time the Company shall immediately pay the remaining
balance of the annual premium.
10. Indemnification. As an employee, officer and director of the
Company, the Executive shall be indemnified against all liabilities, damages,
fines, costs and expenses by the Company in accordance with the indemnification
provisions of the Company's Articles of Incorporation as in effect on the date
hereof, and otherwise to the fullest extent to which employees, officers and
directors of a corporation organized under the laws of the state of
incorporation of the Company may be indemnified pursuant to the laws of such
state, as the same may be amended from time to time (or any subsequent statute
of similar tenor and effect), subject to the terms and conditions of such
statute.
11. Independent Representation. The Executive acknowledges that he has
had the opportunity to seek independent counsel and tax advice in connection
with the execution of this
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Agreement, and the Executive represents and warrants to the Company (a) that he
has sought such independent counsel and advice as he has deemed appropriate in
connection with the execution hereof and the transactions contemplated hereby,
and (b) that he has not relied on any representation of the Company as to tax
matters, or as to the consequences of the execution hereof.
11.1. Neutral Construction. No party may rely on any drafts of this
Agreement in any interpretation of the Agreement. Each party to this Agreement
has reviewed this Agreement and has participated in its drafting and,
accordingly, no party shall attempt to invoke the normal rule of construction to
the effect that ambiguities are to be resolved against the drafting party in any
interpretation of this Agreement.
11.2. Attorney's Fees. In the event that either party hereto
commences litigation against the other to enforce such party's rights hereunder,
the prevailing party shall be entitled to recover all costs, expenses and fees,
including reasonable attorneys' fees (including in-house counsel), paralegals,
fees, and legal assistants' fees through all appeals.
12. General.
12.1. No Brokers. Each of the parties to this Agreement represents
and warrants to the other that it has not utilized the services of any finder,
broker or agent. Each of the parties agrees to indemnify the other against any
and all liabilities to any person, firm or corporation claiming any fee or
commission of any kind on account of services rendered on behalf of such party
in connection with the transactions contemplated by this Agreement.
12.2. Applicable Law. This document shall in all respects be
governed by the laws of the State of Florida. The parties acknowledge that
substantially all of the negotiations relating to this Agreement were conducted
in Florida, and that this Agreement has been executed by both parties in
Florida. Any legal suit, action or proceeding against any party hereto arising
out of or relating to this Agreement shall be instituted in a federal or state
court in Miami-Dade County, Florida, and each party hereto waives any objection
which it may now or hereafter have to the laying of venue of any such suit,
action or proceeding and each party hereto irrevocably submits to the
jurisdiction of any such court in any suit, action or proceeding.
12.3. Rights Absolute. The Company's obligation to pay the Executive
the compensation specified herein shall be absolute and unconditional and shall
not be affected by any circumstance, including, without limitation, any setoff,
counterclaim, defense or other right which the Company may have against the
Executive or anyone else. All amounts payable by the Company hereunder shall be
paid without notice or demand.
12.4. No Offset. Except as expressly provided herein, the Company
waives all rights it my now have or may hereafter have conferred upon it, by
statute or otherwise, to terminate, cancel or rescind this Agreement in whole or
in part. The Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment, and if
Executive obtains such other employment, any compensation earned by Executive
pursuant thereto shall not be applied to mitigate any payment made to Executive
pursuant to this Agreement.
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12.5. Successor Obligations. The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company to
expressly assume by written agreement and to agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place.
12.6. Survival. The parties hereto agree that the covenants
contained in Section 7 hereof shall survive any termination of employment by the
Executive and any termination of this Agreement. In addition, the parties hereto
agree that any compensation or right which shall have accrued to the Executive
as of the date of any termination of employment or termination hereof shall
survive any such termination and shall be paid when due to the extent accrued on
the date of such termination.
12.7. Assignability. All of the terms and provisions contained
herein shall inure to the benefit of and shall be binding upon the parties
hereto and their respective heirs, personal representatives, successors and
assigns. The obligations of the Executive however, may not be assigned, and the
Executive may not, without the Company's written consent, assign, transfer,
convey, pledge, encumber, hypothecate or otherwise dispose of this Agreement or
any interest therein. Any such attempted assignment or disposition shall be null
and void and without effect. The Company and the Executive agree that this
Agreement and all of the Company's rights and obligations hereunder may be
assigned or transferred by the Company to and may be assumed by and become
binding upon and may inure to the benefit of any affiliate of or successor to
the Company. The term "successor" shall mean, with respect to the Company or any
of its subsidiaries, and any other corporation or other business entity which,
by merger, consolidation, purchase of the assets, or otherwise, acquires all or
a material part of the assets of the Company. Any assignment by the Company of
its rights and obligations hereunder to any affiliate of or successor shall not
be considered a termination of employment for purposes of this Agreement.
12.8. Notices. Any and all notices required or desired to be given
hereunder by any party shall be in writing and shall be validly given or made to
another party if delivered either personally, by telex, facsimile transmission,
same-day delivery service, overnight expedited delivery service, or if deposited
in the United States Mail, certified or registered, postage prepaid, return
receipt requested. If notice is served personally, notice shall be deemed
effective upon receipt. If notice is served by telex or by facsimile
transmission, notice shall be deemed effective upon transmission, provided that
such notice is confirmed in writing by the sender within one day after
transmission. If notice is served by same day delivery service or overnight
expedited delivery service, notice shall be deemed effective the day after it is
sent, and if notice is given by United States mail, notice shall be deemed
effective five days after it is sent. In all instances, notice shall be sent to
the parties at the following addresses:
If to the Company: Nexland, Inc.
1101 Biscayne Boulevard, 702 North Tower
Miami, Florida 33131
Fax: (305) 937-3877
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If to the Executive: Martin E. Dell'Oca
----------------------
________, Florida _______
Fax: (___) ___-____
Any party may change its address for the purpose of receiving notices by a
written notice given to the other party.
12.9. Modifications or Amendments. No amendment, change or
modification of this document shall be valid unless in writing and signed by all
of the parties hereto.
12.10. Waiver. No reliance upon or waiver of one or more provisions
of this Agreement shall constitute a waiver of any other provisions hereof.
12.11. Severability. If any provision of this Agreement as applied
to either party or to any circumstances shall be adjudged by a court of
competent jurisdiction to be void or unenforceable, the same shall in no way
affect any other provision of this Agreement or the validity or enforceability
of this Agreement. If any court construes any of the provisions to be
unreasonable because of the duration of such provision or the geographic or
other scope thereof, such court may reduce the duration or restrict the
geographic or other scope of such provision and enforce such provision as so
reduced or restricted.
12.12. Separate Counterparts. This document may be executed in one
or more separate counterparts, each of which, when so executed, shall be deemed
to be an original. Such counterparts shall, together, constitute and shall be
one and the same instrument.
12.13. Headings. The captions appearing at the commencement of the
sections hereof are descriptive only and are for convenience of reference.
Should there be any conflict between any such caption and the section at the
head of which it appears, the substantive provisions of such section and not
such caption shall control and govern in the construction of this document.
12.14. Specific Performance. It is agreed that the rights granted to
the parties hereunder are of a special and unique kind and character and that,
if there is a breach by any party of any material provision of this Agreement,
the other party would not have any adequate remedy at law. It is expressly
agreed, therefore, that the rights of the parties hereunder may be enforced by
an action for specific performance and other equitable relief.
12.15. Further Assurances. Each of the parties hereto shall execute
and deliver any and all additional papers, documents and other assurances, and
shall do any and all acts and things reasonably necessary in connection with the
performance of their obligations hereunder and to carry out the intent of the
parties hereto.
12.16. Entire Agreement. This Agreement constitutes the entire
understanding and agreement of the parties with respect to the subject matter of
this Agreement, and any and all prior agreements or representations are hereby
terminated and canceled in their entirety.
10
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed this ___ day of May, 2000, effective as of the date first above
written.
NEXLAND, INC., an Arizona corporation
By: /s/ Greg Levine
-----------------------------------
Name: Greg Levine
Title: President
-----------------------------------
MARTIN E. DELL'OCA
