SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
________
Date of Report (Date of earliest event reported) December 1, 1997
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HIREL HOLDINGS, INC.
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(Exact name of registrant as specified in its charter)
Delaware 0-28524 65-0666239
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(State or other jurisdiction (Commission File (IRS Employer
or incorporation) Number) Identification No.)
650 SW 16th Terrace, Pompano Beach, FL 33069
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(Address of principal executive offices, including zip code)
Registrant's telephone number, including area code (954) 942-5390
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91599 N.E. 10th Avenue, Suite A, North Miami Beach, Florida 33179
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(Former name or former address, if changed since last report)
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OTHER EVENTS.
Item 5.
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Effective December 1, 1997, Hirel Holdings, Inc. (the "Company") and Mr.
Vincent Montelione mutually agreed to terminate the employment agreement (the
"Employment Agreement") between the Company and Mr. Montelione, President and
Chief Executive Officer of the Company and in lieu thereof, Mr. Montelione has
entered into a Consulting Agreement with the Company (the "Agreement"), a copy
of which is attached hereto as Exhibit A. Under the terms of the Agreement Mr.
Montelione will provide consulting services to the Company, not to exceed 20
hours a week, for a annual consulting fee of $100,000 to be paid monthly. The
Agreement will automatically terminate three (3) years from the date of
execution (the "Term") unless renewed for up to two (2) three (3) year periods
by mutual written consent of the parties. The Agreement also provides certain
non-competition, non-disclosure and non-compete solicitation provisions.
In connection with these transactions, the Company received an aggregate
of 200,000 shares of common stock of Seaton Group, Inc. ("Seaton") as an
inducement for the Company to terminate the Employment Agreement and enter into
the Agreement with Mr. Montelione and an additional 200,000 shares of Seaton to
release Seaton from any claims the Company may have had with respect to the
proposed transaction involving Hirel Marketing, Inc., the Company's wholly-owned
subsidiary and a third party.
The Company's Board of Directors has appointed Gregory S. Fenech as acting
President to replace Mr. Montelione. Mr. Fenech has been a Director of the
Company since inception and also held the position of President with Hirel
Technologies, Inc., a subsidiary of the Company, since July 22, 1996. The
Company intends to locate a permanent appointment as soon as practicable.
Item 7.
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EXHIBITS
(a) Consulting Agreement between Hirel Holdings, Inc. and Mr.
Vincent Montelione dated December 1, 1997.
(b) Agreement between Seaton Group, Inc., Hirel Holdings, Inc. and
Hirel Marketing, Inc. dated November 17, 1997.
(c) Agreement between Seaton Group, Inc., Hirel Holdings, Inc. and
Vincent Montelione dated November 17, 1997.
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SIGNATURES
Pursuant to the requirements 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.
HIREL HOLDINGS, INC.
By: /s/ Gregory S. Fenech
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Gregory S. Fenech, President
DATED: December 15, 1997
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CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into as
of December 1, 1997, between HIREL HOLDINGS, INC., a Delaware corporation
(the "Company"), whose principal place of business is 650 S.W. 16th Terrace,
Pompano Beach, FL 33069, and VINCENT MONTELIONE, an individual (the
"Consultant"), whose address is 8980 S.W. 8th Street, Plantation, Florida 33324.
RECITALS
A. The Company, through its wholly-owned subsidiaries Hirel Marketing, Inc.
("HMI") and Hirel Technologies, Inc. ("HTI"), is engaged in the business of the
distribution of microcomputer hardware peripherals and related communications
products to value-added resellers and dealers in the United States, Europe and
the Pacific Rim countries, through HMI, and the development and sale of fuel
injection systems, related components and other products designed to enhance the
performance of gasoline powered engines, through HTI ("Business/Business
Activities").
B. The Company, through its wholly-owned subsidiaries, has established a
valuable reputation and goodwill in its Business, with experience in all aspects
of the Company and the Company's Business.
C. The Consultant has extensive experience in the Business, and has served as
the President of the Company pursuant to that certain Employment Agreement dated
May 2, 1996 ("Employment Agreement").
D. The Company and the Consultant have mutually agreed that the services of
the Consultant are no longer required on a full time basis, but that the
Consultant, by virtue of the Consultant's employment with the Company, is
familiar with and possessed with the manner, methods, trade secrets and other
confidential information pertaining to the Company's Business, including the
Company's client base, and accordingly it would be in the best interest of the
Company to continue to have the services of Consultant available to the Company
and its subsidiaries..
E. But for the execution of this Agreement by the Consultant and specifically
the execution of the provisions concerning the Covenant Not to Compete and the
Non-Disclosure of Confidential Information, the Company would not enter into
this Agreement with the Consultant.
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Company and the Consultant do hereby agree as follows:
1. RECITALS. The above recitals are true, correct, and are herein
incorporated by reference.
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2. EMPLOYMENT. The Company hereby retains the Consultant to consult
with the Company on such matters as the Company and the Consultant may, from
time to time, agree upon, upon the terms and conditions hereinafter set forth.
3. DUTIES DURING TERM. During the "Term" (including any renewals
thereof) as defined in Section 5 of this Agreement, the Consultant shall devote
such time and efforts to the business and affairs of the Company as may be
reasonably necessary or appropriate in connection with the then pending matters
upon which Consultant is consulting with the Company, provided, however, in no
event shall Consultant be obligated to devote more than 20 hours during any
single week to the business and affairs of the Company, nor more that an
aggregate of 800 hours during any 12 month period during the Term.
4. CONSULTANT COMPENSATION.
a. FEES. The Consultant shall be paid a consulting fee, payable
monthly, at an annual rate of One Hundred Thousand Dollars ($100,000) ("Fee").
Consultant shall not be entitled to any other or additional benefits, including,
but not limited to, any of the benefits set forth in the Employment Agreement
(save and except any COBRA rights that Consultant may have). The Fee shall be
payable on the first of each month. The parties agree that Consultant shall
include all Fees for inclusion in Consultant's own applicable tax returns and
that Consultant is responsible for reporting and paying his own taxes thereon,
including any income and employment taxes. The obligation to pay the Fee during
the Term shall be secured in the manner set forth in Section 4.d hereof.
b. BUSINESS EXPENSE REIMBURSEMENT. The Consultant shall be
entitled to receive proper reimbursement for all reasonable, out-of-pocket
expenses incurred directly by the Consultant (in accordance with the policies
and procedures established by the Company), including first class accommodations
for air travel, in performing services hereunder, provided the Consultant
properly accounts therefor.
c. COBRA RIGHTS. The Company hereby agrees that it shall extend
COBRA coverage to Consultant and his family for the maximum period of time
allowed by law and under the terms of the health insurance policy of the
Company.
d. CAR LEASE. The Company hereby agrees that Consultant may
assume all obligations with respect to the vehicle currently leased by the
Company and used by Consultant under the terms of the Employment Agreement.
e. COMPLIANCE WITH OCEAN BANK LOAN. HMI currently has a line of
credit in the amount of $1,000,000 ("Line of Credit") with Ocean Bank, Miami,
Florida ("Ocean Bank"), which Line of Credit has been personally guaranteed by
Consultant and his wife ("Guaranty"). The Company hereby unconditionally
guarantees that payment and performance by HMI of all of the covenants,
warranties, and obligations of HMI to Ocean Bank under the Line of Credit. The
Company further agrees to defend, indemnify and hold Consultant and his wife
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harmless from and against any and all liability, expense or damage incurred or
sustained by reason of any claims against Consultant and his wife arising out of
or resulting from the Guaranty or the Line of Credit (the guaranty and indemnity
by the Company in favor of Consultant and his wife is hereinafter referred to as
the "Line of Credit Indemnity"). The Company further agrees that to secure the
obligation of the Company to the Consultant and his wife that it shall place
into escrow pursuant to the terms of subsection f hereof
f. ESCROW ARRANGEMENT. To secure the obligation of the Company to
pay the Fees during the Term and to secure the obligations of the Company under
the Line of Credit Indemnity, the Company hereby agrees to place into escrow the
"Seaton Stock" (as hereinafter defined) with Ruden, McClosky, Smith, Schuster &
Russell, P.A. pursuant to the form of Escrow Agreement attached hereto as
Exhibit A. The "Seaton Stock" shall consist of 100,000 shares of the common
stock of Seaton Group, Inc. ("Seaton") received by Hirel, 50,000 of which are
designated as "Unrestricted Shares" and 50,000 of which are designated as
"Restricted Shares" pursuant to that certain Agreement dated of even date
herewith among Seaton, Hirel and Montelione. The Seaton Stock shall be held in
escrow until the end of the Term and (i) the Consultant and his wife have been
released from the Guaranty and (ii) all of the Fees have been paid. The Seaton
Stock shall be sold (i) upon the written direction of Consultant if there shall
be any default under either the Line of Credit Indemnity or in the payment of
Fees, with the proceeds therefrom to be paid pursuant to the written direction
of Consultant, or (ii) at any time upon the written consent of both Company and
Consultant. The proceeds of any such sale shall continue to be held in escrow in
an amount equal to the sum of (i) the amount of the Line of Credit, plus (ii)
the then remaining unpaid Fees due until the end of the Term. Any amount in
excess of the foregoing sum shall be paid over to Hirel. The escrow shall
terminate upon the termination and release of the Guaranty and the payment in
full of all Fees due hereunder.
5. TERM. The Term of this Agreement will commence simultaneous with the
execution hereof and end three (3) years from the date hereof ("Term"), unless
terminated pursuant to Section 6 of this Agreement, provided that the Consultant
and the Company may, upon mutual written consent, renew this Agreement for up to
two (2) additional three (3) year terms ("Renewal Term").
6. CONSEQUENCES OF TERMINATION OF SERVICES.
a. TERMINATION BY THE COMPANY FOR CAUSE.
(1) Nothing herein shall prevent the Company from terminating
this Agreement for "Cause," as hereinafter defined. The Consultant shall
continue to receive his fee only for the period ending with the date of
such termination as provided in this Section 5(a).
(2) "Cause" shall mean (A) committing or participating in an
injurious act of fraud, gross neglect, misrepresentation, embezzlement or
dishonesty against the Company; or (B) committing or participating in any
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other injurious act or omission wantonly, willfully, recklessly or in a
manner which was grossly negligent against the Company, monetarily or
otherwise.
Notwithstanding anything else contained in this Agreement, this Agreement
will not be deemed to have been terminated for Cause unless and until
there shall have been delivered to the Consultant a written notice of
termination stating that the Consultant committed one of the types of
conduct set forth in this Section 6(a) contained in this Agreement and
specifying the particulars thereof and the Consultant shall be given a
thirty (30) day period to cure such conduct.
b. TERMINATION BY THE COMPANY OTHER THAN FOR CAUSE. The foregoing
notwithstanding, the Company may terminate the this Agreement for whatever
reason it deems appropriate; provided, however, that in the event such
termination is not based on Cause, as provided in Section 6(a) above, or if
Consultant's employment is terminated under Sections 6(d) or 6(e) hereof, the
Company shall continue to be obligated to pay to Consultant the Fee and
Consultant shall be entitled to all Stock Options earned or not yet earned
through the end of the then current Term and Company will register all option
shares at Company expense.
c. VOLUNTARY TERMINATION. In the event the Consultant terminates
this Agreement on the Consultant's own volition (except as provided in Section
6(d) and/or Section 6(e)) prior to the expiration of the Term or Renewal Term of
this Agreement, including any renewals thereof, such termination shall
constitute a voluntary termination and in such event the Consultant shall be
limited to the same rights and benefits as provided in connection with Section
6(a).
d. CONSTRUCTIVE TERMINATION OF EMPLOYMENT. A termination by the
Company without Cause under Section 6(b) shall be deemed to have occurred upon
the occurrence of one or more of the following events without the express
written consent of the Consultant:
(1) a significant change in the nature or scope of the
authorities, powers, functions, duties or responsibilities attached to
Consultant's position as described in Section 3; or
(2) a change in the Company's principal office to a location
outside the Palm Beach-Broward-Dade County, Florida area;
(3) a material breach of the Agreement by the Company; or
(4) failure by a successor company to assume the obligations
under the Agreement.
Anything herein to the contrary notwithstanding, the Consultant shall give
written notice to the Board of Directors of the Company that the Consultant
believes an event has occurred which would result in a Constructive Termination
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of the Consultant's employment under this Section 6(d), which written notice
shall specify the particular act or acts, on the basis of which the Consultant
intends to so terminate the Consultant's employment, and the Company shall then
be given the opportunity, within fifteen (15) days of its receipt of such notice
to cure said event; provided, however, there shall be no period permitted to
cure a second occurrence of the same event and in no event will there be a
required period to cure following the occurrence of two events as described in
this Section 6(d).
e. TERMINATION FOLLOWING A CHANGE OF CONTROL.
(1) In the event that a "Change in Control," as hereinafter
defined, of the Company shall occur at any time during the Term or Renewal
Term hereof, the Consultant shall have the right to terminate this
Agreement upon thirty (30) days written notice given at any time within
one year after the occurrence of such event, and such termination of the
Consultant's services to the Company pursuant to this Section 6(e)(1),
then, in any such event, such termination shall be deemed to be a
Termination by the Company Other than for Cause and the Consultant shall
be entitled to the Fee as set forth in Subsection 6(b) of this Agreement.
(2) For purposes of this Agreement, a "Change in Control" of
the Company shall mean a change in control (A) as set forth in Section
280G of the Internal Revenue Code or (B) of a nature that would be
required to be reported in response to Item 1 of the current report on
Form 8K, as in effect on the date hereof, pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 (the "Exchange Act"); provided
that, without limitation, such a change in control shall be deemed to have
occurred at such time as:
(A) any "person", other than the Consultant, (as such
term is used in Section 13(d) and 14(d) of the Exchange Act) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing fifty percent (50%) or more of the combined voting
power of the Company's outstanding securities then having the right
to vote at elections of directors; or,
(B) the individuals who at the commencement date of the
Agreement constitute the Board of Directors cease for any reason to
constitute a majority thereof unless the election, or nomination for
election, of each new director was approved by a vote of at least
two thirds of the directors then in office who were directors at the
commencement of the Agreement; or
(C) there is a failure to elect three or more (or such
number of directors as would constitute a majority of the Board of
Directors) candidates nominated by management of the Company to the
Board of Directors; or
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(D) the business of the Company for which the
Consultant's services are principally performed is disposed of by
the Company pursuant to a partial or complete liquidation of the
Company, a sale of assets (including stock of a subsidiary of the
Company) or otherwise.
Anything herein to the contrary notwithstanding, this Section 6(e)(2) will not
apply where the Consultant gives the Consultant's explicit written waiver
stating that for the purposes of this Section 6(e)(2) a Change in Control shall
not be deemed to have occurred. The Consultant's participation in any
negotiations or other matters in relation to a Change in Control shall in no way
constitute such a waiver which can only be given by an explicit written waiver
as provided in the preceding sentence.
An "Attempted Change in Control" shall be deemed to have occurred if
any substantial attempt, accompanied by significant work efforts and
expenditures of money, is made to accomplish a Change in Control, as described
in subparagraphs (A), (B), (C) or (D) above whether or not such attempt is made
with the approval of a majority of the then current members of the Board of
Directors.
(3) In the event that, within twelve (12) months of any Change
in Control of the Company or any Attempted Change in Control of the
Company, the Company terminates this Agreement, for any reason other than
for Cause as defined in Section 6(c), or this Agreement is constructively
terminated as defined in Section 6(e)(4), then, in any such event, such
termination shall be deemed to be a Termination by the Company Other than
for Cause and the Consultant shall be entitled to the Fee as set forth in
Subsection 6(b) of this Agreement.
(4) For purposes of this Section 6(e), this Agreement shall be
deemed constructively terminated in the event one or more of the following
events occurs without the express written consent of the Consultant:
(A) Significant change in the nature or scope of the
authorities, powers, functions, duties or responsibilities attached
to Consultant's position as described in Section 3; or
(B) Failure by a successor company to assume the
obligations under the Agreement; or
(C) Change in the Company's principal office to a
location outside the Palm Beach-Broward-Dade County, Florida area.
(5) Anything in this Section 6(e) to the contrary
notwithstanding, in no event will any action or non-action by the
Consultant at any time prior to the first anniversary date of the
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applicable Change in Control or Attempted Change in Control (including any
action or non-action prior to the effective date of this Agreement) be
deemed consent to any of the events described in this Section 6(e).
(6) Anything herein to the contrary notwithstanding, in the
event the circumstances giving rise to an Attempted Change in Control are
included in those circumstances giving rise to an actual Change in Control
the twelve (12) month period under this Section 6 will be deemed to have
recommenced on the date the actual Change in Control occurred.
7. COVENANT NOT TO COMPETE. Consultant acknowledges and recognizes the
highly competitive nature of Company's Business and that the goodwill, continued
patronage, and specifically the names and addresses of the Company's Clients
which includes any persons, partnerships, corporations, professional
associations or other organizations for whom the Company has performed Business
Activities (the "Company Clients") constitute a substantial asset of the Company
having been acquired through considerable time, money and effort. Consultant
further acknowledges and recognizes that during the course of the Consultant's
employment, Consultant will receive specialized training, specific knowledge of
Company's Business, access to trade secrets and Confidential Information, as
defined in Section 8, participate in business and hiring decisions, and that it
would be impossible for Consultant to work for a competitor without using and
divulging this valuable confidential information. That Consultant acknowledges
that Company is without an adequate remedy at law in the event this covenant is
violated. Consultant further acknowledges that this covenant not to compete is
an independent covenant within this Agreement. This covenant shall survive this
Agreement and shall be treated as an independent covenant for the purposes of
enforcement; provided, however, that the provisions of this Section 7 shall not
apply if Consultant's employment is terminated without cause as provided in
Section 6(b) above, or if Consultant's employment is terminated under Sections
6(d) or 6(e) hereof. The Consultant recognizes that the terms of this covenant
are reasonable and necessary for the protection of the Company's business
because the value of Consultant's services will be enhanced by his association
with Company. Accordingly, Consultant agrees to the following:
a. That for a period of twelve (12) months after termination of
the Consultant's employment under this Agreement or any renewal or extension
thereof (the "Restricted Period"), for whatever reason and anywhere within 100
miles of any Point of Presence (POP) of the Company (the "Restricted Area"),
Consultant will not, individually or in conjunction with others, directly or
indirectly, engage in any Business Activities other than on behalf of the
Company and as agreed by the Company and Consultant, whether as an officer,
director, proprietor, employer, employee, partner, independent contractor,
investor (other than as a holder of less than 10% of the outstanding capital
stock of a publicly traded corporation), consultant, advisor, agent or
otherwise.
b. That during the Restricted Period and within the Restricted
Area, Consultant will not, indirectly or directly, compete with the Company by
soliciting, inducing or influencing any of the Company's Clients which have a
business relationship with the Company at any time during the Restricted Period
to discontinue or reduce the extent of such relationship with the Company.
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d. That during the Restricted Period, Consultant will not
interfere with, disrupt or attempt to disrupt any past, present or prospective
relationship, contractual or otherwise, between the Company and any Company's
Clients, Employees or Agents.
Notwithstanding the foregoing provisions of this Section 7, or the provisions of
Section 8, the Company acknowledges and agrees that Consultant shall provide
consulting services, either directly or through one or more entities, to Seaton
Group, Inc., a Delaware corporation, and its wholly-owned subsidiaries, United
Information Systems, Inc., a Florida corporation, and UIS Industrias Ltda., a
company organized under the laws of Brazil (collectively, "UIS"). The Company
agrees that (i) any services rendered to or for the benefit of Seaton or UIS
shall not violate the provisions of this Section 7 or Section 8 hereof, (ii)
that although UIS is engaged in the manufacture, sale, assembly and distribution
of personal computers, that the products of, and markets sold or distributed to
by, UIS are materially different than any products sold by the Company or
markets sold or distributed to by the Company, or any products reasonably
anticipated or contemplated to be sold by the Company or markets reasonably
anticipated or contemplated to be entered by the Company. The Company further
agrees that Consultant has not obtained any "Confidential Information" (as
hereinafter defined) that Consultant shall be capable of using in performing his
services for Seaton or UIS, and that the Company shall have no right to any
information learned by Consultant in the course of providing services to Seaton
or UIS.
8. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
a. Consultant acknowledges that the Company's trade secrets,
private or secret processes, methods and ideas, as they exist from time to time,
customer lists and information concerning the Company's products, services,
business records and plans, inventions, product design information, price
structure and pricing, discounts, costs, computer programs and listings, source
code and/or subject code, copyright, trademark, proprietary information,
formulae, protocols, forms, procedures, training methods, development, technical
information, know-how, show-how, new product and service development,
advertising budgets, past, present and future marketing, activities and
procedures, method for operating the Company's Business, credit and financial
data concerning the Company and the Company's Clients and client lists, which
client lists shall not only mean one or more of the names and addresses of the
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clients of the Company but it shall also encompass any and all information
whatsoever regarding them, including their needs, and marketing, advertising,
promotional and sales strategies, sales presentations, research information,
revenues, acquisitions, practices and plans and information which is embodied in
written or otherwise recorded form, and other information of a confidential
nature not known publicly or by other companies selling to the same markets and
specifically including information which is mental, not physical (collectively,
the "Confidential Information") are valuable, special and unique assets of the
Company, access to and knowledge of which have been provided to Consultant by
virtue of Consultant's association with the Company. In light of the highly
competitive nature of the industry in which the Company's business is conducted,
Consultant agrees that all Confidential Information, heretofore or in the future
obtained by Consultant as a result of Consultant's association with the Company
shall be considered confidential.
b. The Consultant agrees that the Consultant shall (1) hold in
confidence and not disclose or make available to any third party any such
Confidential Information obtained directly or constructively from the Company,
unless so authorized in writing by the Company; (2) exercise all reasonable
efforts to prevent third parties from gaining access to the Confidential
Information; (3) not use, directly or indirectly, the Confidential Information
in any respect of its business, except as necessary to evaluate the information
in order to perform the Consultant's duties and responsibilities to the Company;
(4) restrict the disclosure or availability of the Confidential Information to
those who have read and understand this Agreement and who have a need to know
the information in order to achieve the purposes of this Agreement without the
prior consent of the Company; (5) not copy or modify any Confidential
Information without prior written consent of the Company; provided, however,
that such copy or modification of any Confidential Information does not include
any modifications or copying which would otherwise prevent the Consultant from
performing his/her duties and responsibilities to the Company; (6) take such
other protective measures as may be reasonably necessary to preserve the
confidentiality of the Confidential Information; and (7) relinquish and require
all of its employees to relinquish all rights it may have in any matter, such as
drawings, documents, models, samples, photographs, patterns, templates, molds,
tools or prototypes, which may contain, embody or make use of the Confidential
Information; promptly deliver to the Company any such matter as the Company may
direct at any time; and not retain any copies or other reproductions thereof.
c. Consultant further agrees (1) that Consultant shall promptly
disclose in writing to the Company all ideas, inventions, improvements and
discoveries which may be conceived, made or acquired by Consultant as the direct
or indirect result of the disclosure by the Company of the Confidential
Information to Consultant; (2) that all such ideas, inventions, improvements and
discoveries conceived, made or acquired by Consultant. alone or with the
assistance of others, relating to the Confidential Information, shall be the
property of the Company and shall be treated as Confidential Information in
accordance with the provisions hereof and that Consultant shall not acquire any
intellectual property rights under this Agreement except the limited right to
use set forth in this Agreement; (3) that Consultant shall assist in the
preparation and execution of all applications, assignments and other documents
which the Company may deem necessary to obtain patents, copyrights and the like
in the United States and in jurisdictions foreign thereto, and to otherwise
protect the Company.
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d. Excluded from the Confidential Information, and therefore not
subject to the provisions of this Agreement, shall be any information which the
Consultant can show (1) at the time of disclosure, is in the public domain as
evidenced by printed publications; (2) after the disclosure, enters the public
domain by way of printed publication through no fault of the Consultant; (3) by
written documentation was in its possession at the time of disclosure and which
was not acquired directly or indirectly from the Company; or (4) by written
documentation was acquired, after disclosure, from a third party who did not
receive it from the Company, and who had the right to disclose the information
without any obligation to hold such information confidential. The foregoing
exceptions shall apply only from and after the date that the information becomes
generally available to the public or is disclosed to the Consultant by a third
party, respectively. Specific information shall not be deemed to be within the
foregoing exceptions merely because it is embraced by more general information
in the public domain. Additionally, any combination of features shall not be
deemed to be within the foregoing exceptions merely because individual features
are in the public domain. If the Consultant intends to avail himself/herself of
any of the foregoing exceptions, the Consultant shall notify the Company in
writing of his/her intention to do so and the basis for claiming the exception.
e. Upon written request of the Company, Consultant shall return
to the Company all written materials containing the Confidential Information.
Consultant shall also deliver to the Company written statements signed by
Consultant certifying all materials have been returned within five (5) days of
receipt of the request.
9. COVENANTS AS ESSENTIAL ELEMENTS OF THIS AGREEMENT; SURVIVAL OF
COVENANTS. It is understood by and between the parties hereto that the foregoing
covenants by Consultant contained in Sections 7 and 8 of this Agreement shall be
construed to be agreements independent of any other element of Consultant's
relationship with the Company. The existence of any other claim or cause of
action, whether predicated on any other provision in this Agreement, or
otherwise, as a result of the relationship between the parties, shall not
constitute a defense to the enforcement of the covenants in this Agreement
against Consultant.
10. REMEDIES AND ENFORCEMENT.
a. Consultant acknowledges and agrees that the Company's remedy
at law for a breach or threatened breach of any of the provisions of Sections 7
or 8 herein would be inadequate and the breach shall be per se deemed as causing
irreparable harm to the Company. In recognition of this fact, in the event of a
breach by Consultant of any of the provisions of Sections 7 or 8, Consultant
agrees that, in addition to any remedy at law available to the Company,
including, but not limited to monetary damages, the Company, without posting any
bond, shall be entitled to obtain equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction or
any other equitable remedy which may then be available to the Company.
b. If Consultant violates the restrictions set forth in this
Agreement, then the duration of the restrictions under Sections 7 or 8 shall be
extended for an amount of time equal to the number of days that Consultant
violated the Agreement until the date that the Company obtains an order
enjoining the Consultant from said violation.
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c. In the event that, despite the express agreement of Consultant
and Company, any provision stated herein shall be determined by any court or
other tribunal of competent jurisdiction to be unenforceable for any reason
whatsoever, the parties agree that the provision shall be interpreted to extend
only over the maximum period of time for which it may be enforceable; and/or
over the maximum geographical area as to which it may be enforceable, and/or to
the maximum extent in any and all other respects as to which it may be
enforceable, all as determined by such court or tribunal.
d. In the event that Consultant challenges this Agreement and an
injunction is issued staying the implementation of the restrictions imposed
herein, the time remaining on the restrictions shall be tolled until the
challenge is resolved by final adjudication, settlement or otherwise, except
that the time remaining on the restrictions shall not be tolled during any
period in which Consultant is unemployed. If a court finds in favor of Company,
the restrictions will be imposed for the amount of time that remains on the
restrictions at the time they were tolled, or at the time of the court's
decision of the restrictions were not tolled, as the case may be.
e. The provisions of Sections 7 and 8 of this Agreement, as well
as the period of time, geographical areas and types and scope of restrictions of
Consultant's activities specified herein are intended to be divisible; and, in
the event any provision herein shall be deemed invalid or unenforceable in any
respect, as to any one or more periods of time, geographical areas, business or
activities, the remaining provisions shall not thereby be affected but shall
remain in full force and effect; and this Agreement shall be deemed to be
amended without further action by the parties hereto to the extent necessary to
render it valid and enforceable.
f. The Consultant further acknowledges and agrees that in the
event of a breach, or threatened breach of the provisions of Sections 7 or 8,
the Company will suffer immediate and irreparable harm which said harm is
presumed to occur, and that Company shall be entitled to receive from a court of
competent jurisdiction, a temporary restraining order with or without notice to
Consultant, as well as the entry of a preliminary and permanent injunction. Said
right to an injunction shall be in addition to and not in limitation of any
other rights or remedies Company may have for damages or otherwise.
g. It is further expressly understood and agreed that the
provisions of this Agreement shall apply whether this Agreement is terminated by
Company or Consultant or upon its expiration or termination.
h. If the Consultant breaches this provision and the Company
seeks an injunction or other legal remedy to interpret or enforce this covenant,
then the Consultant agrees to pay all reasonable attorneys' fees and costs of
the Company both for the trial and any appeal.
11
<PAGE>
i. Nothing herein contained shall be construed as prohibiting the
Company from pursuing any other remedies available to it for such breach or
threatened breach.
11. LITIGATION-ATTORNEYS' FEES. In connection with any litigation
arising out of the enforcement of this Agreement or for its interpretation, the
prevailing party shall be entitled to recover its costs, including reasonable
attorneys' fees, at the trial and all appellate levels from the other party
hereto, who was the adverse party to such litigation.
12. FREEDOM TO CONTRACT. The Consultant represents and warrants that the
Consultant has the right to negotiate and enter into this Agreement, and the
grant of the rights herein granted and that this Agreement does not breach,
interfere with or conflict with any other contractual agreement, covenant not to
compete, option, right of first refusal, or other existing business
relationship. Consultant acknowledges that this representation is a material
inducement to Company entering into this Agreement and in the event Consultant
breaches this warranty, Consultant agrees to indemnify and hold harmless Company
from any and all claims, actions, losses, damages, including but not limited to,
reasonable attorneys' fees and costs.
13. EFFECT ON PRIOR AGREEMENTS. This Agreement supersedes any and all
prior or written agreements in their entirety between the parties, which shall
be void and of no further force and effect after the date of this Agreement,
including, but not limited to, the Employment Agreement.
14. NOTICES. Any notice required or permitted to be given under the
terms of this Agreement shall be sufficient if in writing and if sent postage
prepaid by registered or certified mail, return receipt requested, by overnight
delivery, by courier; or by confirmed telecopy, in the case of the Consultant to
the Consultant's last place of business or residence as shown on the records of
the Company, or in the case of the Company to its principal office as set forth
in the introductory paragraph, or such other place as it may designate.
15. WAIVER. Unless agreed in writing, the failure of either party, at
any time, to require performance by the other of any provisions hereunder shall
not affect its right thereafter to enforce the same, nor shall a waiver by
either party of any breach of any provision hereof be taken or held to be a
waiver of any other preceding or succeeding breach of any term or provision of
this Agreement. No extension of time for the performance of any obligation or
act shall be deemed to be an extension of time for the performance of any other
obligation or act hereunder.
16. COMPLETE AGREEMENT. This Agreement contains the entire agreement
between the parties hereto with respect to the contents hereof and supersedes
all prior agreements and understandings between the parties with respect to such
matters, whether written or oral. Neither this Agreement nor any term or
provision hereof may be changed, waived, discharged or amended in any manner
other than by an instrument in writing, signed by the party against which the
enforcement of the change, waiver, discharge or amendment is sought.
12
<PAGE>
17. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one agreement.
18. BINDING EFFECT/ASSIGNMENT. This Agreement shall be binding upon the
parties hereto, their heirs, legal representatives, successors and assigns. This
Agreement shall not be assignable by the Consultant but shall be assignable by
the Company in connection with the sale, transfer or other disposition of its
business or to any of the Company's affiliates controlled by or under common
control with the Company.
19. GOVERNING LAW, VENUE, WAIVER OF JURY TRIAL. This Agreement shall
become valid when executed and accepted by Company at its offices in Broward
County, Florida. The parties agree that it shall be deemed made and entered into
in the State of Florida and shall be governed and construed under and in
accordance with the laws of the State of Florida without giving effect to any
principles of conflicts of law. Company and Consultant acknowledge and agree
that the U.S. District for the Southern District of Florida, or if such court
lacks jurisdiction, the 17th Judicial Circuit (or its successor) in and for
Broward County, Florida, shall be the exclusive venue and proper forum in which
to adjudicate any case or controversy arising either, directly or indirectly,
under or in connection with this Agreement and the parties further agree that,
in the event of litigation arising out of or in connection with this Agreement
in these courts, they will not contest or challenge the jurisdiction or venue of
these courts. The parties further agree and hereby waive and release any right
to a trial by jury in any action arising out of the interpretation, enforcement
or breach of this Agreement. Consultant further agrees that he/she must bring an
action arising out of the this Agreement within six (6) months from the date of
accrual of cause of action or forever be barred from bringing said action.
20. HEADINGS. The headings of the sections are for convenience only and
shall not control or affect the meaning or construction or limit the scope or
intent of any of the provisions of this Agreement.
21. SURVIVAL. Any termination of this Agreement shall not affect the
ongoing provisions or remedies of this Agreement which shall survive such
termination in accordance with their terms.
22. SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein. If any court
determines that any provision of Sections 7 or 8 hereof is unenforceable because
of the duration or scope of such provision, such court shall have the power to
reduce the scope or duration of such provision, as the case may be, and, in its
reduced form, such provision shall then be enforceable.
13
<PAGE>
23. CONSTRUCTION. This Agreement shall be construed within the fair
meaning of each of its terms and not against the party drafting the document.
THE PARTIES TO THIS AGREEMENT HAVE READ THIS AGREEMENT, UNDERSTAND ITS TERMS AND
CONDITIONS, HAVE HAD THE OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL OF
THEIR OWN CHOICE AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
HIREL HOLDINGS, INC.
By: /s/ Gregory S. Fenech
-----------------------------------------
Gregory S. Fenech, President
CONSULTANT:
/s/ Vincent Montelione
-------------------------------------
Vincent Montelione
14
AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 17th f
November, 1997, by and among SEATON GROUP, INC., a Delaware corporation
("Seaton"), HIREL HOLDINGS, INC., a Delaware corporation ("Hirel") and HIREL
MARKETING, INC., a Florida corporation ("Marketing").
W I T N E S S E T H:
WHEREAS, Seaton is engaged in negotiations to acquire all of the issued
and outstanding shares of UNITED INFORMATION SYSTEMS, INC., a Florida
corporation, and UIS INDUSTRIAL LTDA, a Brazilian corporation (collectively
hereinafter referred to as "UIS"); and
WHEREAS, Hirel, for itself and its wholly-owned subsidiary, Marketing, had
previously engaged in substantial negotiations with UIS in connection with the
proposed acquisition by Hirel, Marketing or their assigns of UIS; and
WHEREAS, UIS has advised Hirel that in lieu of proceeding with the
proposed transaction with Hirel, UIS intends to enter into a transaction with,
and be acquired by, Seaton; and
WHEREAS, in exchange for the "Seaton Stock" (as hereinafter defined),
Hirel has agreed to release Seaton and UIS from and against any and all rights
or claims Hirel may have with respect to its proposed acquisition of UIS.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. RECITALS. The foregoing recitals are true and correct and are
incorporated herein by this reference.
2. SEATON STOCK. Simultaneous with the closing by Seaton with its
proposed acquisition of UIS, and in exchange for the general release from Hirel
and Marketing pursuant to Section 3 hereof, Seaton shall pay to Hirel the sum of
$80,000, payable by issuance to Hirel of 200,000 shares of the common stock of
Seaton, par value .001 ("Seaton Stock"). The Seaton Stock shall not be
registered as of the date of transfer, but shall be subject to registration as
hereafter provided. Hirel is entitled to registration rights, including
piggyback registration rights, for the Seaton Stock when Seaton proposes to file
a registration statement under the Securities Act of 1933, as amended, with
respect to an offering for its own account of any class of security (other than
in connection with a merger pursuant to a Form S-3) or for the account of
Seaton's shareholders. Seaton will bear all expenses of such registration.
Seaton agrees to file a registration statement not later than January 1, 1998.
In addition to the foregoing, and in recognition of the substantial legal fees
and costs incurred by Hirel in connection with its extended negotiations and
efforts with UIS, Seaton shall also issue to Ruden, McClosky, Smith, Schuster &
Russell, P.A., counsel for Hirel, on behalf of and for the benefit of Hirel,
<PAGE>
10,000 shares of the common stock of Seaton, which is agreed to to have a value
of $4,000 (which shares, for all purposes hereunder, shall be included within
the definition of Seaton Stock).
3. HIREL AND MARKETING GENERAL RELEASE AND COOPERATION. Hirel and
Marketing hereby acknowledge and agree that they have no rights with respect to
the acquisition of UIS. Hirel and Marketing hereby agree to provide to Seaton
all information they have acquired with respect to the assets and operations of
UIS. Hirel and Marketing hereby remise, release, acquit, satisfy, and forever
discharge Seaton and UIS of and from all, and all manner of action and actions,
cause and causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, executions,
claims and demands whatsoever, in law or in equity, which Hirel or Marketing
ever had, now has, or which any successor or assign of Hirel or Marketing,
hereafter can, shall or may have, against Seaton or UIS, for, upon or by reason
of any matter, cause or thing whatsoever, from the beginning of the world to the
day of these presents.
4. SEATON GENERAL RELEASE. Seaton hereby remises, releases, acquits,
satisfies, and forever discharges Hirel and Marketing of and from all, and all
manner of action and actions, cause and causes of action, suits, debts, dues,
sums of money, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses, damages,
judgments, executions, claims and demands whatsoever, in law or in equity, which
Seaton ever had, now has, or which any successor or assign of Seaton, hereafter
can, shall or may have, against Hirel or Marketing, for, upon or by reason of
any matter, cause or thing whatsoever, from the beginning of the world to the
day of these presents.
5. NOTICES. All notices, demands and other communications given
hereunder shall be in writing and shall be deemed to have been duly given (a)
upon hand delivery thereof, (b) upon telefax and written confirmation of
receipt, (c) upon receipt of any overnight deliveries, or (d) on the third (3rd)
business day after mailing United States registered or certified mail, return
receipt requested, postage prepaid, to the addresses set forth below their
respective signatures, or to such other address or to such other person as any
party shall designate to the others for such purposes in the manner hereinabove
set forth.
6. FURTHER ASSURANCES. The parties will execute and deliver such
further instruments and do such further acts and things as may be required to
carry out the intent and purposes of this Agreement.
7. SUCCESSORS AND ASSIGNS. This Agreement and any amendments hereto
shall be binding upon and, to the extent expressly permitted by the provisions
hereof, shall inure to the benefit of the parties, their respective successors
and assigns.
8. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. This Agreement is intended to
be performed in accordance with, and only to the extent permitted by, all
applicable laws, ordinances, rules, and regulations of the jurisdiction in which
the Partnership does business.
9. ENTIRE AGREEMENT. This Agreement sets forth all (and is intended by
all parties hereto to be an integration of all) of the promises, agreements,
2
<PAGE>
conditions, understandings, warranties and representations among the parties
hereto with respect to the Partnership, the Partnership business and the
Partnership assets, and there are no promises, agreements, conditions,
understandings, warranties or representations, oral or written, express or
implied, except as set forth herein. In the event of any conflict between the
terms of this Agreement and the Shareholders Agreement, the terms of the
Shareholders Agreement shall govern.
10. COUNTERPARTS. This Agreement and any amendments hereto may be
executed in counterparts, each of which shall be deemed an original, and such
counterparts shall constitute but one and the same instrument.
11. GENDER. Whenever the context requires, any pronoun used herein may
be deemed to mean the corresponding masculine, feminine or neuter in form
thereof and the singular form of any nouns and pronouns herein may be deemed to
mean the corresponding plural and vice versa as the case may require.
12. ARBITRATION. Any controversy, dispute, disagreement or claim arising
out of or related to any provision of this Agreement, or any alleged breach of
provisions relating thereto, other than with respect to any provision hereunder
for which injunctive or other equitable relief is specifically provided for
hereunder, shall be settled exclusively by binding arbitration, which shall be
conducted in Palm Beach County, Florida before a panel of three arbitrators in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association as in effect from time to time, except as modified by the agreement
of all of the parties to this Agreement. The arbitrator(s) shall use their best
efforts to conduct the arbitration so that a final result, determination,
finding, judgment and/or award (the "Final Determination") is made or rendered
no later than ninety (90) business days after the delivery of the notice of
arbitration nor later than twenty (20) days following conclusion of the
arbitration hearing. The Final Determination must be signed by the arbitrator.
The Final Determination shall be final and binding on all parties and there
shall be no appeal from or reexamination of the Final Determination, except for
fraud, perjury, evident partiality or misconduct by an arbitrator prejudicing
the rights of any party and to correct manifest clerical errors. The parties to
such arbitration may enforce any Final Determination in any state or federal
court having jurisdiction over the dispute.
13. REMEDIES. Each of the parties acknowledge and agree that in the
event that a party hereto shall violate any of the restrictions or fail to
perform any of the obligations hereunder, the other parties will be without
adequate remedy at law and will therefore be entitled to enforce such
restrictions or obligations by temporary or permanent injunctive or mandatory
relief obtained in an action or proceeding instituted in any court of competent
jurisdiction without the necessity of proving damages and without prejudice to
any other remedies it may have at law or in equity.
14. NO THIRD PARTY BENEFICIARY. This Agreement is made solely and
specifically among and for the benefit of the parties hereto, and their
respective successors and assigns subject to the express provisions hereof
relating to successors and assigns, and no other person shall have any rights,
interest or claims hereunder or be entitled to any benefits under or on account
of this Agreement as a third party beneficiary or otherwise; provided, however,
that the provisions of Section 3 hereof shall inure to the benefit of UIS.
3
<PAGE>
15. NO RECORDATION. Neither this Agreement nor any memorandum thereof
shall be recorded amongst the public records of any governmental authority
without the prior written consent of all of the parties hereto.
16. TIME OF THE ESSENCE. Time is of the essence as to all time periods
set forth in this Agreement.
IN WITNESS WHEREOF, the parties hereto have made and entered into this
Agreement as of the date first above written.
SEATON GROUP, INC.
By: /s/ Amgus Hay
-----------------------------------
Address: 1900 Corporate Boulevard
Suite 305 West
Boca Raton, Florida 33431
HIREL HOLDINGS, INC.
By: /s/ Gregory S. Fenech
-----------------------------------
Address: 650 S.W. 16th Terrace
Pompano Beach, FL 33069
Attention: President
HIREL MARKETING, INC.
By: /s/ Michael S. Duggan
-----------------------------------
Address: 650 S.W. 16th Terrace
Pompano Beach, FL 33069
Attention: President
4
AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 17th day of
November, 1997, by and between SEATON GROUP, INC., a Delaware corporation
("Seaton"), HIREL HOLDINGS, INC., a Delaware corporation ("Hirel") and VINCENT
MONTELIONE ("Montelione").
W I T N E S S E T H:
WHEREAS, Seaton is engaged in negotiations to acquire all of the issued
and outstanding shares of UNITED INFORMATION SYSTEMS, INC., a Florida
corporation, and UIS INDUSTRIAL LTDA, a Brazilian corporation (collectively
hereinafter referred to as "UIS"); and
WHEREAS, UIS is in the business of assembling, manufacturing, distributing
and selling Windows-based computer parts, components and accessories, with sales
of completed goods primarily to the Latin American market ("UIS Business"), and
WHEREAS, Hirel, through the "Mac-in-Stock" division of its wholly-owned
subsidiary, Hirel Marketing, Inc., is engaged in the sale of personal computers
and accessories manufactured by or for use with personal computers manufactured
by Apple Computer Company ("Mac-in- Stock Business"); and
WHEREAS, Montelione, the president of Hirel, has extensive experience in
the structuring and operation of businesses engaged in computer sales and
computer sales related activities; and
WHEREAS, UIS desires to retain 2M Capital Corp., a Florida corporation
("2M") in which Montelione is a shareholder, in order for 2M, by and through its
employees (including Montelione) to provide certain consulting services to UIS;
and
WHEREAS, Montelione and Hirel entered into that certain Employment
Agreement dated May 2, 1996 ("Employment Agreement"), which Employment Agreement
provided certain restrictions on the ability of Montelione, directly or
indirectly through a corporation in which he may be a shareholder, from
providing consulting services to third parties; and
WHEREAS, in order to induce Hirel to amend the Employment Agreement with
Montelione so as to enable Seaton to enter into a Consulting Agreement with 2M,
Seaton has agreed to transfer the "Seaton Stock" (as hereinafter defined) to
Hirel.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. RECITALS. The foregoing recitals are true and correct and are
incorporated herein by this reference.
1
<PAGE>
2. SEATON STOCK. Simultaneous with the closing by Seaton with its
proposed acquisition of UIS, and in exchange for the agreement by Hirel to
modify its Employment Agreement with Montelione as provided pursuant to Section
3 hereof, Seaton shall pay to Hirel the sum of $80,000, payable by issuance to
Hirel of 200,000 shares of the common stock of Seaton, par value .001 ("Seaton
Stock"). One hundred thousand (100,000) shares of the Seaton Stock may not be
sold, transferred, assigned, pledged, hypothecated, encumbered or otherwise
directly or indirectly disposed of for a period of twenty-four months following
the date hereof without the prior written consent of a majority of the members
of the Oversight Committee of 2M Capital Corp. (the "Restricted Shares"), while
the remaining one hundred thousand (100,000) shares of the Seaton Stock shall
not be subject to such restrictions on transfer (the "Unrestricted Shares"). The
Restricted Shares may not be sold, transferred, assigned, pledged, hypothecated,
encumbered or otherwise directly or indirectly disposed of for a period of
twenty-four months following the date hereof without the prior written consent
of a majority of the members of the Oversight Committee of 2M Capital Corp. The
Seaton Stock shall not be registered as of the date of transfer, but shall be
subject to registration as hereafter provided. Hirel is entitled to registration
rights, including piggyback registration rights, for the Seaton Stock when
Seaton proposes to file a registration statement under the Securities Act of
1933, as amended, with respect to an offering for its own account of any class
of security (other than in connection with a merger pursuant to a Form S-3) or
for the account of Seaton's shareholders. Seaton will bear all expenses of such
registration. Seaton agrees to file a registration statement not later than
January 1, 1998.
3. CONSULTING AGREEMENT. In consideration of the Seaton Stock, Hirel
and Montelione hereby agree to terminate the Employment Agreement, and in lieu
thereof to enter into the Consulting Agreement in the form attached hereto and
made a part hereof as Exhibit A ("Consulting Agreement"). The Consulting
Agreement shall be entered into at the Seaton Closing, and the Employment
Agreement shall remain in full force and effect until the Seaton Closing. In the
event that the Seaton Closing shall not occur on or before December 31, 1997,
this Agreement shall be null and void and of no further force and effect, the
Employment Agreement shall continue in full force and effect, and the Seaton
Stock shall not be transferred to Hirel.
4. RELEASE OF COVENANTS. Hirel hereby agrees that the operations of its
Mac-in-Stock division consist solely of the sale of personal computers and
accessories manufactured by Apple Computer Company ("Apple"), and that it is not
engaged in the manufacture, sale or distribution of personal computers in Latin
America, other than those manufactured by Apple. Accordingly, Hirel hereby
agrees that it does not have, and shall not have, any cause or causes of action
against Seaton, UIS or Montelione by virtue of any covenants against competition
that may have previously been executed by Montelione with Hirel, or pursuant to
the Consulting Agreement. Hirel further acknowledges and agrees that Montelione
does not have any "confidential information," as such term is defined under the
Employment Agreement, that does or could relate to the UIS business, and
accordingly Hirel agrees that it has no cause or causes of action that may be
brought against Seaton or Montelione as a result of the services to be provided
by 2M to Seaton under the 2M Consulting Agreement.
5. INDEMNIFICATION. Hirel hereby agrees to defend, indemnify and hold
Seaton harmless from and against any and all liability, expense or damage
2
<PAGE>
incurred or sustained by reason of any claims against Seaton arising out of or
resulting from the contractual relationship between Hirel and Montelione,
including, but not limited to, the release by Hirel from the Employment
Agreement.
6. NOTICES. All notices, demands and other communications given
hereunder shall be in writing and shall be deemed to have been duly given (a)
upon hand delivery thereof, (b) upon telefax and written confirmation of
receipt, (c) upon receipt of any overnight deliveries, or (d) on the third (3rd)
business day after mailing United States registered or certified mail, return
receipt requested, postage prepaid, to the addresses set forth below their
respective signatures, or to such other address or to such other person as any
party shall designate to the others for such purposes in the manner hereinabove
set forth.
7. FURTHER ASSURANCES. The parties will execute and deliver such
further instruments and do such further acts and things as may be required to
carry out the intent and purposes of this Agreement.
8. SUCCESSORS AND ASSIGNS. This Agreement and any amendments hereto
shall be binding upon and, to the extent expressly permitted by the provisions
hereof, shall inure to the benefit of the parties, their respective successors
and assigns.
9. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. This Agreement is intended to
be performed in accordance with, and only to the extent permitted by, all
applicable laws, ordinances, rules, and regulations of the jurisdiction in which
the Partnership does business.
10. ENTIRE AGREEMENT. This Agreement sets forth all (and is intended by
all parties hereto to be an integration of all) of the promises, agreements,
conditions, understandings, warranties and representations among the parties
hereto with respect to the Partnership, the Partnership business and the
Partnership assets, and there are no promises, agreements, conditions,
understandings, warranties or representations, oral or written, express or
implied, except as set forth herein. In the event of any conflict between the
terms of this Agreement and the Shareholders Agreement, the terms of the
Shareholders Agreement shall govern.
11. COUNTERPARTS. This Agreement and any amendments hereto may be
executed in counterparts, each of which shall be deemed an original, and such
counterparts shall constitute but one and the same instrument.
12. GENDER. Whenever the context requires, any pronoun used herein may
be deemed to mean the corresponding masculine, feminine or neuter in form
thereof and the singular form of any nouns and pronouns herein may be deemed to
mean the corresponding plural and vice versa as the case may require.
13. ARBITRATION. Any controversy, dispute, disagreement or claim arising
out of or related to any provision of this Agreement, or any alleged breach of
provisions relating thereto, other than with respect to any provision hereunder
for which injunctive or other equitable relief is specifically provided for
hereunder, shall be settled exclusively by binding arbitration, which shall be
conducted in Palm Beach County, Florida before a panel of three arbitrators in
3
<PAGE>
accordance with the Commercial Arbitration Rules of the American Arbitration
Association as in effect from time to time, except as modified by the agreement
of all of the parties to this Agreement. The arbitrator(s) shall use their best
efforts to conduct the arbitration so that a final result, determination,
finding, judgment and/or award (the "Final Determination") is made or rendered
no later than ninety (90) business days after the delivery of the notice of
arbitration nor later than twenty (20) days following conclusion of the
arbitration hearing. The Final Determination must be signed by the arbitrator.
The Final Determination shall be final and binding on all parties and there
shall be no appeal from or reexamination of the Final Determination, except for
fraud, perjury, evident partiality or misconduct by an arbitrator prejudicing
the rights of any party and to correct manifest clerical errors. The parties to
such arbitration may enforce any Final Determination in any state or federal
court having jurisdiction over the dispute.
14. REMEDIES. Each of the parties acknowledge and agree that in the
event that a party hereto shall violate any of the restrictions or fail to
perform any of the obligations hereunder, the other parties will be without
adequate remedy at law and will therefore be entitled to enforce such
restrictions or obligations by temporary or permanent injunctive or mandatory
relief obtained in an action or proceeding instituted in any court of competent
jurisdiction without the necessity of proving damages and without prejudice to
any other remedies it may have at law or in equity.
15. NO THIRD PARTY BENEFICIARY. This Agreement is made solely and
specifically among and for the benefit of the parties hereto, and their
respective successors and assigns subject to the express provisions hereof
relating to successors and assigns, and no other person shall have any rights,
interest or claims hereunder or be entitled to any benefits under or on account
of this Agreement as a third party beneficiary or otherwise; provided, however,
that the provisions of Section 3 hereof shall inure to the benefit of UIS.
16. NO RECORDATION. Neither this Agreement nor any memorandum thereof
shall be recorded amongst the public records of any governmental authority
without the prior written consent of all of the parties hereto.
17. TIME OF THE ESSENCE. Time is of the essence as to all time periods
set forth in this Agreement.
4
<PAGE>
IN WITNESS WHEREOF, the parties hereto have made and entered into this
Agreement as of the date first above written.
SEATON GROUP, INC.
By: /s/ Angus Hay
-----------------------------------
Address: 1900 Corporate Boulevard
Suite 305 West
Boca Raton, FL 33431
HIREL HOLDINGS, INC.
By: /s/ /s/ Gregory S. Fenech
-----------------------------------
Address: 650 S.W. 16th Terrace
Pompano Beach, FL 33069
Attention: President
/s/ Vincent Montelione
--------------------------------------
VINCENT MONTELIONE, individually
Address:
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