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without limitation, rights to equity in the Company pursuant to any plan or grant and paymentof compensation for accrued but unused vacation days;               (iv) any unpaid Bonus in respect to any completed fiscal year that has ended on or prior tothe end of the Term of Employment; and               (v) rights to indemnification by virtue of the Executive’s position as an officer or directorof the Company or its subsidiaries and the benefits under any directors’ and officers’ liabilityinsurance policy maintained by the Company, in accordance with the terms thereof.          (b) “***Base Salary***” means the salary provided for in Section 4(a) hereof or any increased salarygranted to Executive pursuant to Section 4(a) hereof.          (c) “***Beneficial Ownership***” shall have the meaning ascribed to such term in Rule 13d-3promulgated under the Securities Exchange Act of 1934, as amended.          (d) “***Board***” means the Board of Directors of the Company.          (e) “***Bonus***” means any bonus payable to the Executive pursuant to Section 4(b) hereof.          (f) “***Bonus Period***” means each period for which a Bonus is payable. Unless otherwise specified by the Compensation Committee of the Board, the Bonus Periodshall be the fiscal year of the Company.          (g) “***Cause***” means:               (i) a conviction of the Executive, or a plea of nolo contendere, to a felony involvingdishonesty or a breach of trust; or               (ii) willful misconduct or gross negligence by the Executive resulting, in either case, inmaterial economic harm to the Company or any Related Entities; or               (iii) a willful continued failure by the Executive to carry out the reasonable and lawfuldirections of the Board or the Chief Executive Officer of the Company; or               (iv) fraud, embezzlement, theft or dishonesty of a material nature by the Executive againstthe Company or any Related Entity, or a willful material violation by the Executive of a policy orprocedure of the Company or any Related Entity, resulting, in any case, in material economic harmto the Company or any Related Entity; or               (v) a willful material breach by the Executive of this Agreement.An act or failure to act shall not be “willful” if (i) done by the Executive in good faith or (ii)the Executive reasonably believed that such action or inaction was in the best interests of theCompany and the Related Entities, and Cause shall not include any act or failure to act otherwisedescribed in (ii), (iii), (iv) or (v) unless and until the Company shall have provided to the
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Executive written notice of such act or failure to act and ten (10) business days from the date ofsuch notice to cure such matter and the Executive shall have failed to cure the same,          (h) “***Change in Control***” means:               (i) The acquisition by any Person of Beneficial Ownership of more than thirty percent (30%) ofeither (A) the then outstanding shares of common stock of the Company (the “Outstanding CompanyCommon Stock”) or (B) the combined voting power of the then outstanding voting securities of theCompany entitled to vote generally in the election of directors (the “Outstanding Company VotingSecurities) (the foregoing Beneficial Ownership hereinafter being referred to as a “ControllingInterest”); provided, however, that for purposes of this definition, the following acquisitionsshall not constitute or result in a Change of Control: (x) any acquisition by the Company; (y) anyacquisition by any employee benefit plan (or related trust) sponsored or maintained by the Companyor any subsidiary of the Company; or (z) any acquisition by any corporation pursuant to atransaction which complies with clauses (A) and (B) of subsection (iii) below; or               (ii) During any period of two (2) consecutive years (not including any period prior to theCommencement Date) individuals who constitute the Board on the Commencement Date (the “IncumbentBoard”) cease for any reason to constitute at least a majority of the Board; provided, however,that any individual becoming a director subsequent to the Commencement Date whose election, ornomination for election by the Company’s shareholders, was approved by a vote of at least amajority of the directors then comprising the Incumbent Board shall be considered as though suchindividual were a member of the Incumbent Board, but excluding, for this purpose, any suchindividual whose initial assumption of office occurs as a result of an actual or threatenedelection contest with respect to the election or removal of directors or other actual or threatenedsolicitation of proxies or consents by or on behalf of a Person other than the Board; or               (iii) Consummation of a reorganization, merger, statutory share exchange or consolidation orsimilar corporate transaction involving the Company or any of its subsidiaries, a sale or otherdisposition of all or substantially all of the assets of the Company, or the acquisition of assetsor stock of another entity by the Company or any of its subsidiaries (each a “BusinessCombination”), in each case, unless, following such Business Combination, (A) all or substantiallyall of the individuals and entities who were the Beneficial Owners, respectively, of theOutstanding Company Common Stock and Outstanding Company Voting Securities immediately prior tosuch Business Combination beneficially own, directly or indirectly, more than fifty percent (50%)of the then outstanding shares of common stock and the combined voting power of the thenoutstanding voting securities entitled to vote generally in the election of directors, as the casemay be, of the corporation resulting from such Business Combination (including, without limitation,a corporation which as a result of such transaction owns the Company or all or substantially all ofthe Company’s assets either directly or through one or more subsidiaries) in substantially the sameproportions as their ownership, immediately prior to such Business Combination of the OutstandingCompany Common Stock and Outstanding Company Voting Securities, as the case may be, and (B) atleast a majority of the members of the Board of Directors of the corporation resulting from suchBusiness Combination
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were members of the Incumbent Board at the time of the execution of the initial agreement, orof the action of the Board, providing for such Business Combination; or               (iv) approval by the shareholders of the Company of a complete liquidation or dissolution ofthe Company.          (i) “***COBRA***” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended fromtime to time.          (j) “***Code***” means the Internal Revenue Code of 1986, as amended.          (k) “***Commencement Date***” means June 13, 2008.          (l) “***Common Stock***” means the common stock of the Company, par value $0.001 per share.          (m) “***Competitive Activity***” means an activity that is in material direct competition with theCompany in a business in which the Company was engaged while the Executive was employed by theCompany, in any of the States within the United States, or countries within the world, in which theCompany conducts business.          (n) “***Confidential Information***” means all trade secrets and information disclosed to theExecutive or known by the Executive as a consequence of or through the unique position of hisemployment with the Company or any Related Entity (including information conceived, originated,discovered or developed by the Executive and information acquired by the Company or any RelatedEntity from others) prior to or after the date hereof, and not generally or publicly known (otherthan as a result of unauthorized disclosure by the Executive), about the Company or any RelatedEntity or its business.          (o) “***Disability***” means the Executive’s inability, or failure, to perform the essentialfunctions of his or her position, with or without reasonable accommodation, for any period of six(6) months or more in any twelve (12) month period, by reason of any medically determinablephysical or mental impairment.          (p) “***Equity Awards***” means any stock options, restricted stock, restricted stock units, stockappreciation rights, phantom stock or other equity based awards granted by the Company to theExecutive.          (q) ***“Equity Plan”***means the Company’s 2005 Executive Incentive Compensation Plan, as amendedfrom time to time, and any successor plan thereto***.***          (r) “***Excise Tax***” means any excise tax imposed by Section 4999 of the Code, together with anyinterest and penalties imposed with respect thereto, or any interest or penalties are incurred bythe Executive with respect to any such excise tax.          (s) “***Expiration Date***” means the date on which the Term of Employment, including any renewalsthereof under Section 3(b), shall expire.
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          (t) “***Good Reason***” means               (i) the assignment to the Executive of any duties inconsistent in any material respect withthe Executive’s position (including status, titles and reporting requirements), authority, dutiesor responsibilities as contemplated by Section 2(b) of this Agreement, or any other action by theCompany that results in a material diminution in such position, authority, duties orresponsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action nottaken in bad faith and which is remedied by the Company promptly after receipt of notice thereofgiven by the Executive;               (ii) any failure by the Company to comply with any of the provisions of Section 4 of thisAgreement, other than an isolated, insubstantial and inadvertent failure not occurring in bad faithand that is remedied by the Company promptly after receipt of notice thereof given by theExecutive;               (iii) the Company’s requiring the Executive to be based at any office or location outside ofMiami, Florida, except for travel reasonably required in the performance of the Executive’sresponsibilities;               (iv) any purported termination by the Company of the Executive’s employment other than forCause pursuant to Section 6(b), or by reason of the Executive’s Disability pursuant to Section 6(c)of this Agreement, prior to the Expiration Date;               (v) the Executive is requested by the Company to engage in conduct that is reasonably likelyto result in a violation of law; or               (vi) the assignment to the Executive of any duties inconsistent in any material respect withthe Executive’s then position (including status, offices, titles and reporting relationships),authority, duties or responsibilities which when taken as a whole results in a significantdiminution in the Executive’s position, authority, duties or responsibilities, excluding for thispurpose any isolated, immaterial and inadvertent action not taken in bad faith and which isremedied by the Company immediately after receipt of notice thereof given by the Executive.     For purposes of this Agreement, any good faith determination made by the Board as to whetherthe circumstances resulting in the Executive’s termination of his employment fulfills therequirements set forth above to constitute ”Good Reason” shall be binding and conclusive on allinterested parties.          (u) “***Group***” shall have the meaning ascribed to such term in Section 13(d) of the SecuritiesExchange Act of 1934.          (v) “***Person***” shall have the meaning ascribed to such term in Section 3(a)(9) of the SecuritiesExchange Act of 1934 and used in Sections 13(d) and 14(d) thereof.          (w) ***“Related Entity”***means any subsidiary or affiliate, and any business, corporation,partnership, limited liability company or other entity designated by Board in which the Company ora subsidiary holds a substantial ownership interest, directly or indirectly.
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          (x) “***Restricted Period***” shall be the Term of Employment and the one (1) year periodimmediately following termination of the Term of Employment.          (y) ***“Severance Amount”***shall mean an amount equal to two (2) times the sum of (A) theExecutive’s annual Base Salary as in effect immediately prior to the Termination Date and (B) theExecutive’s Target Bonus for the Bonus Period in which termination occurs.          (z) “***Severance Term***” means the one (1) year period following the date on which the Term ofEmployment ends.          (aa) “***Target Bonus***” means the target annual incentive award opportunity for the applicableBonus Period.          (bb) “***Term of Employment***” means the period during which the Executive shall be employed by theCompany pursuant to the terms of this Agreement.          (cc) “***Termination Date***” means the date on which the Term of Employment ends.          (dd) “***Termination Year Bonus***” means Bonus payable under Section 4(b) hereof for the BonusPeriod in which the Executive’s employment with the Company terminates for any reason.     2. ***Employment.***          (a) ***Employment and Term***. The Company hereby agrees to employ the Executive and the Executive hereby agrees to servethe Company during the Term of Employment on the terms and conditions set forth herein.          (b) ***Duties of Executive***. During the Term of Employment, the Executive shall be employed and serve as the ChiefOperating Officer of the Company, and shall have such duties as are typically associated with suchtitle. The Executive shall faithfully and diligently perform all services as may be assigned to himby the Board or the Chief Executive Officer of the Company provided that such services areconsistent with the Executive’s position with the Company, and shall exercise such power andauthority as may from time to time be delegated to him by the Board or the Chief Executive Officerof the Company. The Executive shall devote his full business time, attention and efforts to theperformance of his duties under this Agreement, render such services to the best of his ability,and use his reasonable best efforts to promote the interests of the Company. The Executive shallnot engage in any other business or occupation during the Term of Employment, including, withoutlimitation, any activity that materially (i) conflicts with the interests of the Company or itssubsidiaries, (ii) interferes with the proper and efficient performance of his duties for theCompany, or (iii) interferes with the exercise of his judgment in the Company’s best interests.Notwithstanding the foregoing or any other provision of this Agreement, it shall not be a breach orviolation of this Agreement for the Executive to (x) serve on corporate, civic or charitable boardsor committees, (y) deliver lectures, fulfill speaking engagements or teach at educationalinstitutions, or (z) manage personal investments, so long as such activities do not significantlyinterfere with or significantly detract
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from the performance of the Executive’s responsibilities to the Company in accordance withthis Agreement.     3. ***Term***.          (a) ***Initial Term.***The initial Term of Employment under this Agreement, and the employment of the Executivehereunder, shall commence on the Commencement Date and shall expire on the third anniversary of theCommencement Date (the “Initial Term”), unless sooner terminated in accordance with Section 6hereof.          (b) ***Renewal Terms***. At the end of the Initial Term, the Term of Employment automatically shall renew forsuccessive one (1) year terms (subject to earlier termination as provided in Section 6 hereof),unless the Company or the Executive delivers written notice to the other at least three (3) monthsprior to the Expiration Date of its or his election not to renew the Term of Employment.     4. ***Compensation.***          (a) ***Base Salary***. The Executive shall receive a Base Salary at the annual rate of $250,000 during the Term ofEmployment, with such Base Salary payable in installments consistent with the Company’s normalpayroll schedule, subject to applicable withholding and other taxes. The Base Salary shall bereviewed, at least annually, for merit increases and may, by action and in the discretion of theCompensation Committee of the Board, be increased at any time or from time to time, but may not bedecreased from the then current Base Salary.          (b) ***Bonuses***.               (i) During the Term of Employment, the Executive shall participate in the Company’s annualincentive compensation program pursuant to and under the Company’s 2005 Executive IncentiveCompensation Plan, or such other plan, program and/or arrangements applicable to senior-levelexecutives as established and modified from time to time by the Compensation Committee of the Boardin its sole discretion. During the Term of Employment, the Executive shall have a threshold bonusopportunity under such plan or program equal to 30% of his current Base Salary, a Target Bonusopportunity under such plan or program equal to 40% of his current Base Salary, and a maximum bonusunder such plan or program equal to 50% of his current Base Salary, in each case based onsatisfaction of performance criteria to be established by the Compensation Committee of the Boardat the beginning of each fiscal year that begins during the Term of Employment. Payment of annualincentive compensation awards shall be made in the same manner and at the same time that othersenior-level executives receive their annual incentive compensation awards.               (ii) For the Bonus Period in which the Executive’s employment with the Company terminates forany reason other than by the Company for Cause under Section 6(b) hereof or by the Executivewithout Good Reason under Section 6(g) hereof, the Company shall pay the Executive a pro rataportion (based upon the period ending on the date on which the Executive’s employment with theCompany terminates) of the Target Bonus for the Bonus Period in which such termination ofemployment occurs; provided, however, that (A) the Bonus Period shall be deemed to end on the lastday of the fiscal quarter of the Company in which the
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Executive’s employment so terminates, and (B) the business criteria used to determine thebonus for this short Bonus Period shall be annualized and shall be determined based upon unauditedfinancial information prepared in accordance with generally accepted accounting principles, appliedconsistently with prior periods, and reviewed and approved by the Compensation Committee of theBoard.               (iii) The Executive may receive such additional bonuses, if any, as the Compensation Committeeof the Board may in its sole and absolute discretion determine.               (iv) Any Bonus payable pursuant to this Section 4(b) shall be paid by the Company to theExecutive on the fifteenth day of the third month after the end of the Bonus Period for which it ispayable.          (c) ***Repayment Provisions.***If the Company is required to prepare an accounting restatementdue to its material noncompliance, as a result of the Executive’s misconduct, with any financialreporting requirement under the United States securities laws, then, and only if Section 304 of theSarbanes-Oxley Act of 2002, or a successor provision, is then in effect, the Executive shallreimburse the Company for (i) any bonus or other incentive-based or equity-based compensationreceived by the Executive from the Company during the twelve (12) month period following the firstpublic issuance or filing with the Securities Exchange Commission (whichever first occurs) of thefinancial documents embodying such financial reporting requirement and (ii) any profits realizedfrom the sale of securities of the Company during such twelve (12) month period.     5. ***Expense Reimbursement and Other Benefits.***          (a) ***Reimbursement of Expenses***. Upon the Executive’s submission of substantiation in accordance with, and otherwise subjectto, such rules and guidelines as the Company may from time to time adopt with respect to thereimbursement of expenses of executive personnel, the Company shall reimburse the Executive for allreasonable expenses actually paid or incurred by the Executive during the Term of Employment in thecourse of and pursuant to the business of the Company. Notwithstanding anything herein to thecontrary, the Executive’s first class travel and accommodations shall be considered reasonable.The Executive shall account to the Company in writing for all expenses for which reimbursement issought and shall supply to the Company copies of all relevant invoices, receipts or other evidencereasonably requested by the Company.          (b) ***Compensation/Benefit Programs***. During the Term of Employment, the Executive shall be entitled to participate in allmedical, dental, hospitalization, accidental death and dismemberment, disability, travel and lifeinsurance plans, and any and all other plans as are presently and hereinafter offered by theCompany to its executive personnel, including savings, pension, profit-sharing and deferredcompensation plans, subject to the general eligibility and participation provisions set forth insuch plans. The Executive shall designate in his sole discretion the beneficiary under suchpolicies. If the life insurance cannot be purchased at standard rates, then the Company shallprovide and/or pay for that amount of insurance that can be purchased for premiums equal to thecoverage specified above at standard rates.
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          (c) ***Working Facilities***. During the Term of Employment, the Company shall furnish the Executive with an office,secretarial help and such other facilities and services suitable to his position and adequate forthe performance of his duties hereunder.          (d) ***Equity Awards***. During the Term of Employment, the Executive shall be eligible to be granted Equity Awardsunder (and therefore subject to all terms and conditions of) the Equity Plan or such other plans orprograms as the Company may from time to time adopt, and subject to all rules of regulation of theSecurities and Exchange Commission applicable thereto. The number and type of Equity Awards, andthe terms and conditions thereof, shall be determined by the Compensation Committee of the Board,in its discretion and pursuant to the Equity Plan or the plan or arrangement pursuant to which theyare granted.          (e) ***Vacation***. The Executive shall be entitled to four (4) weeks of paid vacation each calendar yearduring the Term of Employment, to be taken at such times as the Executive and the Company shallmutually determine and provided that no vacation time shall significantly interfere with the dutiesrequired to be rendered by the Executive hereunder. Any vacation time not taken by Executiveduring any fiscal year may be carried forward into any succeeding calendar year.          (f) ***Other Benefits***. Regardless of anything herein to the contrary, if at any time duringthe Term of Employment the Company or any Related Entity agrees to provide or provides any benefitto any other employee of the Company or Related Entity which benefit is not otherwise provided tothe Executive hereunder, or which is greater than a similar benefit provided to the Executivehereunder, the Company shall provide such benefit to the Executive or increase his benefit to be atleast equal to such benefit agreed to be provided or provided to such other employee.     6. ***Termination***.          (a) ***General***. The Term of Employment shall terminate upon the earliest to occur of (i) the Executive’sdeath, (ii) a termination by the Company by reason of the Executive’s Disability, (iii) atermination by the Company with or without Cause, or (iv) a termination by Executive with orwithout Good Reason. Upon any termination of Executive’s employment for any reason, except as mayotherwise be requested by the Company in writing and agreed upon in writing by Executive, theExecutive shall resign from any and all directorships, committee memberships or any other positionsExecutive holds with the Company or any of its subsidiaries.          (b) ***Termination By Company for Cause***. The Company shall at all times have the right, upon written notice to the Executive, toterminate the Term of Employment, for Cause. Cause shall in no event be deemed to exist exceptupon a decision made by the Board made at a special meeting of the Board to be called and held at atime reasonably convenient to the Board and the Executive, but in no less than five (5) businessdays or more than thirty (30) business days after the Executive’s receipt of notice from theCompany specifying such alleged “Cause.” Such notice from the Company to the Executive specifyingalleged “Cause” shall be in writing and shall set forth in detail all acts or omission constitutingsuch Cause. The Executive shall have not less than three (3) days prior written notice of the timeand place of, and shall have
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the right to appear before, such special meeting of the Board with legal counsel of hischoosing to refute any allegation of Cause specified in such notice. No termination of theExecutive’s employment by reason of Cause shall be effective until the Executive is afforded suchopportunity to appear and after such appearance (or failure of the Executive to appear at thedesignated time), not less than a majority of the members of the entire Board (excluding theExecutive if he is so a member) shall concur that such Cause specified in such notice exists. Forpurposes of this Section 6(b), any good faith determination by the Board of Cause, made inaccordance with the procedure described above, shall be binding and conclusive on all interestedparties. In the event that the Term of Employment is terminated by the Company for Cause,Executive shall be entitled only to the Accrued Obligations.          (c) ***Disability***. The Company shall have the option, in accordance with applicable law, to terminate the Termof Employment upon written notice to the Executive, at any time during which the Executivecontinues to suffer after having suffered from a Disability. In the event that the Term ofEmployment is terminated due to the Executive’s Disability, the Executive shall be entitled to:               (i) The Accrued Obligations, payable as and when those amounts would have been payable had theTerm of Employment not ended;               (ii) The Termination Year Bonus, payable within 2-1/2 months after the last day of the BonusPeriod in which the Termination Date occurs; and               (iii) Vesting, immediately prior to such termination, in any Equity Awards that have notpreviously vested, provided that the Executive shall only have six (6) months after the TerminationDate in order to exercise any stock options within such Equity Awards.          (d) ***Death***. In the event that the Term of Employment is terminated due to the Executive’s death, theExecutive shall be entitled to:               (i) The Accrued Obligations, payable as and when those amounts would have been payable had theTerm of Employment not ended;               (ii) The Termination Year Bonus, payable within 2-1/2 months after the last day of the BonusPeriod in which the Termination Date occurs; and               (iii) Vesting, immediately prior to such termination, in any Equity Awards that have notpreviously vested, provided that the Executive’s estate or beneficiary shall only have six (6)months after the Termination Date in order to exercise any stock options within such Equity Awards.          (e) ***Termination Without Cause***. The Company may terminate the Term of Employment at any time without Cause, by writtennotice to the Executive not less than thirty (30) days prior to the effective date of suchtermination. In the event that the Term of Employment is terminated by the Company without Cause(other than due to the Executive’s death or Disability) the Executive shall be entitled to:
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               (i) The Accrued Obligations, payable as and when those amounts would have been payable had theTerm of Employment not ended;               (ii) The Termination Year Bonus, payable within 2 1/2 months after the last day of the BonusPeriod in which the Termination Date occurs;               (iii) A lump sum payment equal to the Severance Amount, payable within the later of ten (10)business days after the Termination Date or the expiration of the seven (7) day revocation periodfor the general release described in Section 6(j);               (iv) Continuation, at the Company’s expense, of the health benefits provided to Executive andhis covered dependents under the Company health plans as in effect from time to time after the dateof such termination at the same cost applicable to active employees until the earlier of: (A) theexpiration of the Severance Term, or (B) the date the Executive commences employment with anyperson or entity and, thus, is eligible for health insurance benefits; provided, however, that as acondition of continuation of such benefits, the Company may require the Executive to elect tocontinue his health insurance pursuant to COBRA. In the event that the Company is unable toprovide the Executive and his covered dependents with any health benefits required pursuant to thisSection 6(e)(iv), then the Company shall pay the Executive cash equal to the value of the benefitthat otherwise would have accrued for the Executive’s benefit under the plan, for the period duringwhich such benefits could not be provided under the plans, said cash payments to be made monthlyuntil such time as the benefits would otherwise terminate pursuant to this Section 6(e)(iv); and               (v) Vesting, immediately prior to such termination, in any Equity Awards that have notpreviously vested.          (f) ***Termination by Executive for Good Reason***. The Executive may terminate the Term of Employment for Good Reason by providing the Companyfifteen (15) days’ written notice setting forth in reasonable specificity the event thatconstitutes Good Reason, which written notice, to be effective, must be provided to the Companywithin sixty (60) days of the Executive’s first knowledge of the occurrence of such event. Duringsuch fifteen (15) day notice period, the Company shall have a cure right (if curable), and if notcured within such period, the Executive’s termination shall be effective upon the date immediatelyfollowing the expiration of the fifteen (15) day notice period, and the Executive shall be entitledto the same payments and benefits as provided in Section 6(e) above for a termination withoutCause.          (g) ***Termination by Executive Without Good Reason***. The Executive may terminate his employment without Good Reason by providing the Companythirty (30) days’ written notice of such termination. In the event of a termination of employmentby the Executive under this Section 6(g), the Executive shall be entitled only to the AccruedObligations. In the event of termination of the Executive’s employment under this Section 6(g),the Company may, in its sole and absolute discretion, by written notice, accelerate such date oftermination and still have it treated as a termination without Good Reason.
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          (h) ***Termination Upon Expiration Date***. In the event that Executive’s employment with the Company terminates upon the expiration ofthe Term of Employment, the Executive shall be entitled to:               (i) The Accrued Obligations, payable as and when those amounts would have been payable had theTerm of Employment not ended;               (ii) The Termination Year Bonus, payable within 2-1/2 months after the last day of the BonusPeriod in which the Termination Date occurs;               (iii) A lump-sum payment equal to the Severance Amount, payable within the later of ten (10)business days after the Termination Date or the expiration of the seven (7) day revocation periodfor the general release described in Section 6(j); and               (iv) Continuation, at the Company’s expense, of the health benefits provided to Executive andhis covered dependants under the Company health plans as in effect from time to time after the dateof such termination at the same cost applicable to active employees until the earlier of: (A) theexpiration of the Severance Term, or (B) the date Executive commences employment with any person orentity and, thus, is eligible for health insurance benefits; provided, however, that as a conditionof continuation of such benefits, the Company may require the Executive to elect to continue hishealth insurance pursuant to COBRA. In the event that the Company is unable to provide theExecutive and his covered dependents with any health benefits required pursuant to this Section6(h)(iv), then the Company shall pay the Executive cash equal to the value of the benefit thatotherwise would have accrued for the Executive’s benefit under the plan, for the period duringwhich such benefits could not be provided under the plans, said cash payments to be made monthlyuntil such time as the benefits would otherwise terminate pursuant to this Section 6(h)(iv).          (i) ***Change in Control of the Company***. If the Executive’s employment is terminated by the Company without Cause during (x) the6-month period preceding the date of the Change in Control or (y) the two (2) year periodimmediately following the Change in Control, then in lieu of any amounts otherwise payable under6(e) or 6(f) hereof, the Executive shall be entitled to:               (i) The Accrued Obligations, payable as and when those amounts would have been payable had theTerm of Employment not ended;               (ii) The Termination Year Bonus, payable within 2 1/2 months after the last day of the BonusPeriod in which the Termination Date occurs;               (iii) The Severance Amount, payable within the later of ten (10) business days after theTermination Date or the expiration of the seven (7) day revocation period for the general releasedescribed in Section 6(j); and               (iv) Continuation, at the Company’s expense, of the health benefits provided to Executive andhis covered dependants under the Company health plans as in effect from time to time after the dateof such termination at the same cost applicable to active employees until the earlier of: (A) theexpiration of the Severance Term, or (B) the date
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Executive commences employment with any person or entity and, thus, is eligible for healthinsurance benefits; provided, however, that as a condition of continuation of such benefits, theCompany may require the Executive to elect to continue his health insurance pursuant to COBRA. Inthe event that the Company is unable to provide the Executive and his covered dependents with anyhealth benefits required pursuant to this Section 6(i)(iv), then the Company shall pay theExecutive cash equal to the value of the benefit that otherwise would have accrued for theExecutive’s benefit under the plan, for the period during which such benefits could not be providedunder the plans, said cash payments to be made monthly until such time as the benefits wouldotherwise terminate pursuant to this Section 6(i)(iv); and               (v) Vesting, immediately prior to such termination, in any Equity Awards that have notpreviously vested.          (j) ***Release***. Any payments due to Executive under this Article 6 (other than the Accrued Obligations orany payments due on account of the Executive’s death) shall be conditioned upon Executive’sexecution of a general release of claims in the form attached hereto as Exhibit A (subject to suchmodifications as the Company reasonably may request).          (k) ***Section 280G Reductions and Additional Payments by the Company.***               (i) Anything in this Agreement to the contrary notwithstanding, in the event that it shall bedetermined that any payment, distribution, or other action by the Company to or for the benefit ofthe Executive (whether paid or payable or distributed or distributable pursuant to the terms of theAgreement or otherwise) (a “Payment”), would result in an “excess parachute payment” within themeaning of Section 280G(b)(1) of the Code, but that no portion of the Payments would be treated asexcess parachute payments if the aggregate amount of the Payments pursuant to this Agreement (the“Agreement Payments”) were reduced by not more 10% of the aggregate present value of all of theAgreement Payments, then the Agreement Payments shall be reduced to the “Reduced Amount”. The“Reduced Amount” shall be an amount expressed in present value which maximizes the aggregatepresent value of Agreement Payments without causing any Payment to be an excess parachute paymentunder Section 280G(b)(1) of the Code. For purposes of this Section 6(k), present value shall bedetermined in accordance with Section 280G(d)(4) of the Code.               (ii) If and to the extent that Section 6(k)(i) is not applicable, then, anything in thisAgreement to the contrary notwithstanding, in the event that it shall be determined that anyPayment would be subject to an Excise Tax, the Company shall make a payment to the Executive (a“Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (includingany Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to theInternal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x)the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed becauseof the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highestapplicable marginal rate of federal income taxation for the calendar year in which the Gross-UpPayment is to be made. For purposes of determining the amount of the Gross-Up Payment, theExecutive shall be deemed to (x) pay federal income taxes at the highest marginal rates of federalincome taxation for the calendar year in which the Gross-Up Payment is to be made, and (y) payapplicable state and
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local income taxes at the highest marginal rate of taxation for the calendar year in which theGross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could beobtained from deduction of such state and local taxes.               (iii) Subject to the provisions of paragraph (iv) of this Section 6(k), all determinationsrequired to be made under this Section 6(k), including the amount of any Reduced Amount and thePayments that are to be reduced pursuant to Section 6(k)(i) and, whether and when a Gross-UpPayment is required and the amount of such Gross-Up Payment, and the assumptions (consistent withthe above) to be utilized in arriving at such determination, shall be made by KPMG LLP (the“Accounting Firm”), which shall provide detailed supporting calculations both to the Company andthe Executive within 15 business days of the receipt of notice from the Executive that there hasbeen a Payment, or such earlier time as is requested by the Company. In the event that theAccounting Firm is serving as accountant or auditor for the individual, entity or group effectingthe Change of Control, the Executive shall appoint another regionally recognized accounting firm tomake the determinations required hereunder (which accounting firm shall then be referred to as theAccounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely bythe Company. Any Gross-Up Payment, as determined pursuant to this Section 6(k), shall be paid bythe Company to the Executive within five days of the receipt of the Accounting Firm’sdetermination. If the Accounting Firm determines that no Excise Tax is payable by the Executive,it shall furnish the Executive with a written opinion that failure to report the Excise Tax on theExecutive’s applicable federal income tax return would not result in the imposition of a negligenceor similar penalty. Any determination by the Accounting Firm shall be binding upon the Company andthe Executive. As a result of the uncertainty in the application of Section 4999 of the Code atthe time of the initial determination by the Accounting Firm hereunder, it is possible thatGross-Up Payments which will not have been made by the Company should have been made(“Underpayment”), consistent with the calculations required to be made hereunder. In the eventthat the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firmshall determine the amount of the Underpayment that has occurred and any such Underpayment shall bepromptly paid by the Company to or for the benefit of the Executive.               (iv) The Executive shall notify the Company in writing of any claim by the Internal RevenueService that, if successful, would require the payment by the Company of the Gross-Up Payment.Such notification shall be given as soon as practicable but no later than ten business days afterthe Executive is informed in writing of such claim and shall apprise the Company of the nature ofsuch claim and the date on which such claim is requested to be paid. The Executive shall not paysuch claim prior to the expiration of the 30-day period following the date on which it gives suchnotice to the Company (or such shorter period ending on the date that any payment of taxes withrespect to such claim is due). If the Company notifies the Executive in writing prior to theexpiration of such period that it desires to contest such claim, the Executive shall:                    (A) give the Company any information reasonably requested by the Company relating to suchclaim,                    (B) take such action in connection with contesting such claim as the Company shall reasonablyrequest in writing from time to time, including, without
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limitation, accepting legal representation with respect to such claim by an attorneyreasonably selected by the Company and approved by the Executive,                    (C) cooperate with the Company in good faith in order effectively to contest such claim, and                    (D) permit the Company to participate in any proceedings relating to such claim; provided,however, that the Company shall bear and pay directly all costs and expenses (including additionalinterest and penalties) incurred in connection with such contest and shall indemnify and hold theExecutive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest andpenalties with respect thereto) imposed as a result of such representation and payment of costs andexpenses. Without limitation on the foregoing provisions of this Section 6(k)(iii) and in a mannerreasonably acceptable to the Executive, and provided that the Company shall keep the Executiveinformed of all matters in the proceedings, the Company shall control all proceedings taken inconnection with such contest and, at its sole option, may pursue or forego any and alladministrative appeals, proceedings, hearings and conferences with the taxing authority in respectof such claim and may, at its sole option, either direct the Executive to pay the tax claimed andsue for a refund or contest the claim in any permissible manner, and the Executive agrees toprosecute such contest to a determination before any administrative tribunal, in a court of initialjurisdiction and in one or more appellate courts, as the Company shall determine; provided,however, that if the Company directs the Executive to pay such claim and sue for a refund, theCompany shall advance the amount of such payment to the Executive, on an interest-free basis andshall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax orincome tax (including interest or penalties with respect thereto) imposed with respect to suchadvance or with respect to any imputed income with respect to such advance; and further providedthat any extension of the statute of limitations relating to payment of taxes for the taxable yearof the Executive with respect to which such contested amount is claimed to be due is limited solelyto such contested amount. Furthermore, the Company’s control of the contest shall be limited toissues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shallbe entitled to settle or contest, as the case may be, any other issue raised by the InternalRevenue Service or any other taxing authority.               (v) If, after the receipt by the Executive of an amount advanced by the Company pursuant toSection 6(k)(iii), the Executive becomes entitled to receive any refund with respect to such claim,the Executive shall (subject to the Company’s complying with the requirements of Section 6(k)(iii))promptly pay to the Company the amount of such refund (together with any interest paid thereonafter taxes applicable thereto). If, after the receipt by the Executive of an amount advanced bythe Company pursuant to Section 6(k)(iii), a determination is made that the Executive shall not beentitled to any refund with respect to such claim and the Company does not notify the Executive inwriting of its intent to contest such denial of refund prior to the expiration of 30 days aftersuch determination, then such advance shall be forgiven and shall not be required to be repaid andthe amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Paymentrequired to be paid.          (l) ***Cooperation***. Following the Term of Employment, the Executive shall give his assistance and cooperationwillingly, upon reasonable advance notice and with due
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consideration for his other business or personal commitments, in any matter relating to hisposition with the Company, or his expertise or experience as the Company may reasonably request,including his attendance and truthful testimony where deemed appropriate by the Company, withrespect to any investigation or the Company’s defense or prosecution of any existing or futureclaims or litigations or other proceedings relating to matters in which he was involved orpotentially had knowledge by virtue of his employment with the Company. In no event shall hiscooperation materially interfere with his services for a subsequent employer or other similarservice recipient. To the extent permitted by law, the Company agrees that (i) it shall promptlyadvance to the Executive (and reimburse him for any additional) reasonable and documented expensesin connection with his rendering assistance and/or cooperation under this Section 6(l) upon hispresentation of documentation for such expenses and (ii) the Executive shall be reasonablycompensated for any assistance or cooperation pursuant to this Section 6(l).          (m) ***Return of Company Property***. Following the Termination Date, the Executive or his personal representative shall returnall Company property in his possession, including but not limited to all computer equipment(hardware and software), telephones, facsimile machines, palm pilots and other communicationdevices, credit cards, office keys, security access cards, badges, identification cards and allcopies (including drafts) of any documentation or information (however stored) relating to thebusiness of the Company, its customers and clients or its prospective customers and clients(provided that the Executive may retain a copy the addresses contained in his rolodex, his palmpilot, his PDA and any similar device).          (n) ***Section 409A***.               (i) To the extent that the Executive otherwise would be entitled to any payment (whetherpursuant to this Agreement or otherwise) during the six months beginning on the Termination Datethat would be subject to the additional tax imposed under Section 409A of the Code (“Section409A”), (x) the payment shall not be made to the Executive during such six month period, and (y)the payment shall be paid to the Executive on the earlier of the six-month anniversary of theTermination Date or the Executive’s death or Disability. Similarly, to the extent that theExecutive otherwise would be entitled to any benefit (other than a payment) during the six monthsbeginning on the Termination Date that would be subject to the Section 409A additional tax, thebenefit shall be delayed and shall begin being provided (together, if applicable, with anadjustment to compensate the Executive for the delay) on the earlier of the six-month anniversaryof the Termination Date, or the Executive’s death or Disability.               (ii) It is the Company’s intention that the benefits and rights to which the Executive couldbecome entitled in connection with termination of employment comply with Section 409A. If theExecutive or the Company believes, at any time, that any of such benefit or right does not comply,it shall promptly advise the other and shall negotiate reasonably and in good faith to amend theterms of such benefits and rights such that they comply with Section 409A (with the most limitedpossible economic effect on the Executive and on the Company).          (o) ***Clawback of Certain Compensation and Benefits***. If, after the termination of the Executive’s employment with the Company for any reasonother than by the Company for Cause, a court of competent jurisdiction determines that theExecutive breached
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Sections 7 hereof and has issued an injunction against the Executive in accordance withSection 7(i) hereof, then, in addition to any other remedy that may be available to the Company inlaw or equity and/or pursuant to any other provisions of this Agreement, the Executive’s employmentshall be deemed to have been terminated for Cause retroactively to the Termination Date and theExecutive also shall be subject to the following provisions:               (i) the Executive shall be required to pay to the Company, immediately upon written demand bythe Board, all amounts paid to him by the Company, whether or not pursuant to this Agreement, on orafter the Termination Date (including the pre-tax cost to the Company of any benefits (other thanthose described in clause (iii) of this Section 6(o)) provided by the Company) that are in excessof the total amount that the Company would have been required to pay (and the pre-tax cost of anybenefits (other than those described in clause (iii) of this Section 6(o)) that the Company wouldhave been required to provide) to the Executive if the Executive’s employment with the Company hadbeen terminated by the Company for Cause in accordance with Section 6(b) hereof;               (ii) all vested and unvested Equity Awards then held by the Executive shall immediatelyexpire; and               (iii) the Executive shall be required to pay to the Company, immediately upon written demandby the Board, an amount equal to all Accelerated Equity Award Gains that the Executive hasreceived.          For purposes of this Section, the following terms shall have the following meanings:          ***“Accelerated Equity Award Gains”***shall mean the sum of (x) the Accelerated Option and SARGains and (y) the Accelerated Equity Award Gains.          ***“Accelerated Options”***shall mean those unvested stock options that become vested in accordancewith Section 6(i) hereof.          ***“Accelerated Option and SAR Gain”***shall mean:               (i) in the case of any Accelerated Option, or any Accelerated SAR that is settled in shares ofthe Company’s common stock, the product of:               (ii) the number of shares of the Company’s common stock acquired by the Executive uponexercise of any Accelerated Option or Accelerated SAR, multiplied by               (iii) the difference between (x) the fair market value per share of the Company’s common stockunderlying such Accelerated Option or Accelerated SAR as of the date on which the Executiveexercised the Accelerated Option or Accelerated SAR less (y) the exercise price or grant price (asequitably adjusted) of such Accelerated Option or Accelerated SAR; and               (iv) in the case of any Accelerated SAR that is settled in cash or in property, other thanshares of the Company’s common stock, the amount of cash and fair market
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value of any property paid or transferred to the Executive with respect to the AcceleratedOption or Accelerated SAR.          “***Accelerated Equity Award Gains***” shall mean the aggregate value of the Accelerated Sharesbased on the closing price the Company’s common stock value determined on whichever of thefollowing dates produces the greatest value:               (i) the Termination Date;               (ii) the date on which a court of competent jurisdiction determines that the Executivebreached Section 7 hereof and has issued an injunction against the Executive in accordance withSection 7(i);               (iii) the date on which the Executive transfers or otherwise disposes of the AcceleratedShares.          “***Accelerated SARs***” shall mean those unvested stock appreciation rights that become vested inaccordance with Section 6(i) hereof.          “***Accelerated Shares***” shall mean those shares of the Company’s common stock granted by theCompany to the Executive as compensation for services that would have been forfeited in the eventthat the Executive’s employment with the Company had been terminated by the Company for Cause inaccordance with Section 6(b) hereof.     7. ***Restrictive Covenants.***          (a) ***Non-competition***. At all times during the Restricted Period, the Executive shall not, without the priorwritten consent of the Board, directly or indirectly (whether as a principal, agent, partner,employee, officer, investor, owner, consultant, board member, security holder, creditor orotherwise), engage in any Competitive Activity, or have any direct or indirect interest in any soleproprietorship, corporation, company, partnership, association, venture or business or any otherperson or entity that directly or indirectly (whether as a principal, agent, partner, employee,officer, investor, owner, consultant, board member, security holder, creditor, or otherwise)engages in a Competitive Activity; provided that the foregoing shall not apply to the Executive’sownership of Common Stock of the Company or the acquisition by the Executive, solely as aninvestment, of securities of any issuer that is registered under Section 12(b) or 12(g) of theSecurities Exchange Act of 1934, and that are listed or admitted for trading on any United Statesnational securities exchange or that are quoted on the Nasdaq Stock Market, or any similar systemor automated dissemination of quotations of securities prices in common use, so long as theExecutive does not control, acquire a controlling interest in or become a member of a group whichexercises direct or indirect control of, more than five percent (5%) of any class of capital stockof such corporation.          (b) ***Nonsolicitation of Employees and Certain Other Third Parties***. At all times during the Restricted Period, the Executive shall not, without the priorwritten consent of the Board, directly or indirectly, for himself or for any other person, firm,corporation, partnership, association or other entity (i) employ or attempt to employ or enter intoany contractual arrangement with any employee, consultant or independent contractor performing
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services for the Company, or any Related Entity, unless such employee, consultant orindependent contractor, has not been employed or engaged by the Company for a period in excess ofsix (6) months, and/or (ii) call on or solicit any of the actual or targeted prospective customersor clients of the Company or any Related Entity on behalf of any person or entity in connectionwith any Competitive Activity, nor shall the Executive make known the names and addresses of suchactual or targeted prospective customers or clients, or any information relating in any manner tothe trade or business relationships of the Company or any Related Entities with such customers orclients, other than in connection with the performance of the Executive’s duties under thisAgreement.          (c) ***Confidential Information***. At any time during the Restricted Period, the Executive shall not at any time divulge,communicate, use to the detriment of the Company or for the benefit of any other person or persons,or misuse in any way, any Confidential Information pertaining to the business of the Company. AnyConfidential Information or data now or hereafter acquired by the Executive with respect to thebusiness of the Company (which shall include, but not be limited to, information concerning theCompany’s financial condition, prospects, technology, customers, suppliers, sources of leads andmethods of doing business) shall be deemed a valuable, special and unique asset of the Company thatis received by the Executive in confidence and as a fiduciary, and the Executive shall remain afiduciary to the Company with respect to all of such information at all times during the RestrictedPeriod. Notwithstanding the foregoing, nothing herein shall be deemed to restrict the Executivefrom disclosing Confidential Information as required to perform his duties under this Agreement orto the extent required by law or order of any court, agency or other appropriate governingauthority. If any person or authority makes a demand on the Executive purporting to legally compelhim to divulge any Confidential Information, the Executive immediately shall give notice of thedemand to the Company so that the Company may first assess whether to challenge the demand prior tothe Executive’s divulging of such Confidential Information. The Executive shall not divulge suchConfidential Information until the Company either fails to respond to the Executive’s notice ofsuch demand on a timely basis, has concluded not to challenge the demand, or has exhausted itschallenge, including appeals, if any. Upon request by the Company, the Executive shall deliverpromptly to the Company upon termination of his services for the Company, or at any time thereafteras the Company may request, all memoranda, notes, records, reports, manuals, drawings, designs,computer files in any media and other documents (and all copies thereof) containing suchConfidential Information.          (d) ***Ownership of Developments***. All processes, concepts, techniques, inventions and works of authorship, including newcontributions, improvements, formats, packages, programs, systems, machines, compositions of mattermanufactured, developments, applications and discoveries, and all copyrights, patents, tradesecrets, or other intellectual property rights associated therewith conceived, invented, made,developed or created by the Executive during the Term of Employment either during the course ofperforming work for the Companies or their clients or which are related in any manner to thebusiness (commercial or experimental) of the Company or its clients (collectively, the “WorkProduct”) shall belong exclusively to the Company and shall, to the extent possible, be considereda work made by the Executive for hire for the Company within the meaning of Title 17 of the UnitedStates Code. To the extent the Work Product may not be considered work made by the Executive forhire for the Company, the Executive agrees to assign, at the Company’s expense, and automatically
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assign at the time of creation of the Work Product, without any requirement of furtherconsideration, any right, title, or interest the Executive may have in such Work Product. Upon therequest of the Company, and at its expense, the Executive shall take such further actions,including execution and delivery of instruments of conveyance, as may be appropriate to give fulland proper effect to such assignment. The Executive shall further: (i) promptly disclose the WorkProduct to the Company; (ii) assign to the Company, without additional compensation, all patent orother rights to such Work Product for the United States and foreign countries; (iii) sign allpapers necessary to carry out the foregoing; and (iv) give testimony in support of his inventions,all at the sole cost and expense of the Company.          (e) ***Books and Records***. All books, records, and accounts relating in any manner to the customers or clients of theCompany, whether prepared by the Executive or otherwise coming into the Executive’s possession,shall be the exclusive property of the Company and shall be returned immediately to the Company ontermination of the Executive’s employment hereunder or on the Company’s request at any time.          (f) ***Acknowledgment by Executive***. The Executive acknowledges and confirms that the restrictive covenants contained in thisArticle 7 (including without limitation the length of the term of the provisions of this Article 7)are reasonably necessary to protect the legitimate business interests of the Company, and are notoverbroad, overlong, or unfair and are not the result of overreaching, duress or coercion of anykind. The Executive further acknowledges and confirms that the compensation payable to theExecutive under this Agreement is in consideration for the duties and obligations of the Executivehereunder, including the restrictive covenants contained in this Article 7, and that suchcompensation is sufficient, fair and reasonable. The Executive further acknowledges and confirmsthat his full, uninhibited and faithful observance of each of the covenants contained in thisArticle 7 will not cause him any undue hardship, financial or otherwise, and that enforcement ofeach of the covenants contained herein will not impair his ability to obtain employmentcommensurate with his abilities and on terms fully acceptable to him or otherwise to obtain incomerequired for the comfortable support of him and his family and the satisfaction of the needs of hiscreditors. The Executive acknowledges and confirms that his special knowledge of the business ofthe Company is such as would cause the Company serious injury or loss if he were to use suchability and knowledge to the benefit of a competitor or were to compete with the Company inviolation of the terms of this Article 7. The Executive further acknowledges that the restrictionscontained in this Article 7 are intended to be, and shall be, for the benefit of and shall beenforceable by, the Company’s successors and assigns. The Executive expressly agrees that upon anybreach or violation of the provisions of this Article 6, the Company shall be entitled, as a matterof right, in addition to any other rights or remedies it may have, to (i) temporary and/orpermanent injunctive relief in any court of competent jurisdiction as described in Section 7(ihereof, and (ii) such damages as are provided at law or in equity.          (g) ***Reformation by Court***. In the event that a court of competent jurisdiction shall determine that any provision ofthis Article 7 is invalid or more restrictive than permitted under the governing law of suchjurisdiction, then only as to enforcement of this Article 7 within the jurisdiction of such court,such provision shall be interpreted or reformed and enforced as if it provided for the maximumrestriction permitted under such governing law.
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          (h) ***Extension of Time***. If the Executive shall be in violation of any provision of this Article 7, then each timelimitation set forth in this Article 7 shall be extended for a period of time equal to the periodof time during which such violation or violations occur. If the Company seeks injunctive relieffrom such violation in any court of competent jurisdiction and if such court determines that suchviolation by the Executive did occur, then the covenants set forth in this Article 7 shall beextended for a period of time equal to the pendency of such proceeding including all appeals by theExecutive.          (i) ***Injunction***. It is recognized and hereby acknowledged by the parties hereto that a breach by theExecutive of any of the covenants contained in Article 7 of this Agreement will cause irreparableharm and damage to the Company, for which monetary damages to the Company may be an inadequateremedy. As a result, the Executive recognizes and hereby acknowledges that the Company shall beentitled to an injunction from any court of competent jurisdiction enjoining and restraining anyviolation of any or all of the covenants contained in Article 7 of this Agreement by the Executiveor any of his affiliates, associates, partners or agents, either directly or indirectly, and thatsuch right to injunction shall be cumulative and in addition to whatever other remedies the Companymay possess.     8. ***Representations and Warranties of Executive***. The Executive represents and warrants to the Company that:          (a) The Executive’s employment will not conflict with or result in a material breach of anyagreement to which he is a party or otherwise may be bound;          (b) The Executive has not violated, and in connection with his employment with the Companywill not violate, any non-solicitation, non-competition or other similar covenant or agreement of aprior employer by which he is or may be bound; and          (c) In connection with Executive’s employment with the Company, he will not use anyconfidential or proprietary information that would violate the terms of any agreement between theExecutive and any prior employer; and          (d) The Executive has not (i) been convicted of any felony; or (ii) committed any criminal actwith respect to Executive’s current or any prior employment.     9. ***Taxes***. Anything in this Agreement to the contrary notwithstanding, all payments required to bemade by the Company hereunder to the Executive or his estate or beneficiaries shall be subject tothe withholding of such amounts relating to taxes as the Company may reasonably determine it shouldwithhold pursuant to any applicable law or regulation. In lieu of withholding such amounts, inwhole or in part, the Company may, in its sole discretion, accept other provisions for payment oftaxes and withholding as required by law, provided it is satisfied that all requirements of lawaffecting its responsibilities to withhold have been satisfied.     10. ***Arbitration***.          (a) ***Exclusive Remedy***. The parties recognize that litigation in federal or state courts or before federal or stateadministrative agencies of disputes arising out of the Executive’s employment with the Company orout of this Agreement, or the Executive’s termination of
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employment or termination of this Agreement, may not be in the best interests of either theExecutive or the Company, and may result in unnecessary costs, delays, complexities, anduncertainty. The parties agree that any dispute between the parties arising out of or relating tothe Executive’s employment, or to the negotiation, execution, performance or termination of thisAgreement or the Executive’s employment, including, but not limited to, any claim arising out ofthis Agreement, claims under Title VII of the Civil Rights Act of 1964, as amended, the CivilRights Act of 1991, the Age Discrimination in Employment Act of 1967, the Americans withDisabilities Act of 1990, Section 1981 of the Civil Rights Act of 1966, as amended, the FamilyMedical Leave Act, the Employee Retirement Income Security Act, and any similar federal, state orlocal law, statute, regulation, or any common law doctrine, whether that dispute arises during orafter employment shall be resolved by arbitration in the Miami-Dade County, Florida area, inaccordance with the National Employment Arbitration Rules of the American Arbitration Association,as modified by the provisions of this Section 10. Except as set forth below with respect toSection 7 of this Agreement, the parties each further agree that the arbitration provisions of thisAgreement shall provide each party with its exclusive remedy, and each party expressly waives anyright it might have to seek redress in any other forum, except as otherwise expressly provided inthis Agreement. Notwithstanding anything in this Agreement to the contrary, the provisions of thisSection 10 shall not apply to any injunctions that may be sought with respect to disputes arisingout of or relating to Section 7 of this Agreement. The parties acknowledge and agree that theirobligations under this arbitration agreement survive the expiration or termination of thisAgreement and continue after the termination of the employment relationship between the Executiveand the Company. **By election of arbitration as the means for final settlement of all claims, theparties hereby waive their respective rights to, and agree not to, sue each other in any action ina Federal, State or local court with respect to such claims, but may seek to enforce in court anarbitration award rendered pursuant to this Agreement. The parties specifically agree to waivetheir respective rights to a trial by jury, and further agree that no demand, request or motionwill be made for trial by jury.**          (b) ***Arbitration Procedure and Arbitrator’s Authority***. In the arbitration proceeding, each party shall be entitled to engage in any type ofdiscovery permitted by the Federal Rules of Civil Procedure, to retain its own counsel, to presentevidence and cross-examine witnesses, to purchase a stenographic record of the proceedings, and tosubmit post-hearing briefs. In reaching his/her decision, the arbitrator shall have no authorityto add to, detract from, or otherwise modify any provision of this Agreement. The arbitrator shallsubmit with the award a written opinion which shall include findings of fact and conclusions oflaw. Judgment upon the award rendered by the arbitrator may be entered in any court havingcompetent jurisdiction.          (c) ***Effect of Arbitrator’s Decision; Arbitrator’s Fees.***The decision of the arbitrator shallbe final and binding between the parties as to all claims which were or could have been raised inconnection with the dispute, to the full extent permitted by law. In all cases in which applicablefederal law precludes a waiver of judicial remedies, the parties agree that the decision of thearbitrator shall be a condition precedent to the institution or maintenance of any legal,equitable, administrative, or other formal proceeding by the Executive in connection with thedispute, and that the decision and opinion of the arbitrator may be presented in any other forum onthe merits of the dispute. If the arbitrator finds that the Executive was terminated in
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violation of law or this Agreement, the parties agree that the arbitrator acting hereundershall be empowered to provide the Executive with any remedy available should the matter have beentried in a court, including equitable and/or legal remedies, compensatory damages and back pay. Thearbitrator’s fees and expenses and all administrative fees and expenses associated with the filingof the arbitration shall be borne by the non-prevailing party.     11. ***Assignment***. The Company shall have the right to assign this Agreement and its rights and obligationshereunder in whole, but not in part, to any corporation or other entity with or into which theCompany may hereafter merge or consolidate or to which the Company may transfer all orsubstantially all of its assets, and in any such case said corporation or other entity shall byoperation of law or expressly in writing assume all obligations of the Company hereunder as fullyas if it had been originally made a party hereto, but no assignment will release the Company fromthis Agreement or any of its obligations hereunder. The Company may not otherwise assign thisAgreement or its rights and obligations hereunder. The Executive may not assign or transfer thisAgreement or any rights or obligations hereunder.     12. ***Governing Law***. This Agreement shall be governed by and construed and enforced in accordance with theinternal laws of the State of Florida, without regard to principles of conflict of laws.
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     13. ***Jurisdiction and Venue***. The parties acknowledge that a substantial portion of the negotiations, anticipatedperformance and execution of this Agreement occurred or shall occur in Miami-Dade County, Florida,and that, therefore, without limiting the jurisdiction or venue of any other federal or statecourts, each of the parties irrevocably and unconditionally (i) agrees that any suit, action orlegal proceeding arising out of or relating to this Agreement which is expressly permitted by theterms of this Agreement to be brought in a court of law, shall be brought in the courts of recordof the State of Florida in Miami-Dade County or the court of the United States, Southern Districtof Florida; (ii) consents to the jurisdiction of each such court in any such suit, action orproceeding; (iii) waives any objection which it or he may have to the laying of venue of any suchsuit, action or proceeding in any of such courts; and (iv) agrees that service of any court papersmay be effected on such party by mail, as provided in this Agreement, or in such other manner asmay be provided under applicable laws or court rules in such courts.     14. ***Entire Agreement***. This Agreement constitutes the entire agreement between the parties hereto with respect tothe subject matter hereof and, upon its effectiveness, shall supersede all prior agreements,understandings and arrangements, both oral and written, between the Executive and the Company (orany of its affiliates) with respect to such subject matter. This Agreement may not be modified inany way unless by a written instrument signed by both the Company and the Executive.     15. ***Survival***. The respective rights and obligations of the parties hereunder shall survive anytermination of the Executive’s employment hereunder, including without limitation, the Company’sobligations under Section 6 and the Executive’s obligations under Section 7 above, and theexpiration of the Term of Employment, to the extent necessary to the intended preservation of suchrights and obligations.     16. ***Notices***. All notices required or permitted to be given hereunder shall be in writing and shall bepersonally delivered by courier, sent by registered or certified mail, return receipt requested orsent by confirmed facsimile transmission addressed as set forth herein. Notices personallydelivered, sent by facsimile or sent by overnight courier shall be deemed given on the date ofdelivery and notices mailed in accordance with the foregoing shall be deemed given upon the earlierof receipt by the addressee, as evidenced by the return receipt thereof, or three (3) days afterdeposit in the U.S. mail. Notice shall be sent (i) if to the Company, addressed to 2 SouthBiscayne Boulevard, Suite 2900, Miami, Florida 33131, Attention: President, and (ii) if to theExecutive, to his address as reflected on the payroll records of the Company, or to such otheraddress as either party shall request by notice to the other in accordance with this provision.     17. ***Benefits; Binding Effect***. This Agreement shall be for the benefit of and binding upon the parties hereto and theirrespective heirs, personal representatives, legal representatives, successors and, where permittedand applicable, assigns, including, without limitation, any successor to the Company, whether bymerger, consolidation, sale of stock, sale of assets or otherwise.     18. ***Right to Consult with Counsel; No Drafting Party***. The Executive acknowledges having read and considered all of the provisions of thisAgreement carefully, and having had the
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opportunity to consult with counsel of his own choosing, and, given this, the Executive agreesthat the obligations created hereby are not unreasonable. The Executive acknowledges that he hashad an opportunity to negotiate any and all of these provisions and no rule of construction shallbe used that would interpret any provision in favor of or against a party on the basis of whodrafted the Agreement.     19. ***Severability***. The invalidity of any one or more of the words, phrases, sentences, clauses, provisions,sections or articles contained in this Agreement shall not affect the enforceability of theremaining portions of this Agreement or any part thereof, all of which are inserted conditionallyon their being valid in law, and, in the event that any one or more of the words, phrases,sentences, clauses, provisions, sections or articles contained in this Agreement shall be declaredinvalid, this Agreement shall be construed as if such invalid word or words, phrase or phrases,sentence or sentences, clause or clauses, provisions or provisions, section or sections or articleor articles had not been inserted. If such invalidity is caused by length of time or size of area,or both, the otherwise invalid provision will be considered to be reduced to a period or area whichwould cure such invalidity.     20. ***Damages; Attorneys Fees***. Nothing contained herein shall be construed to prevent the Company or the Executive fromseeking and recovering from the other damages sustained as a result of the other party’s breach ofany term or provision of this Agreement to the extent such breach results from, arises out of or isotherwise in connection with the gross negligence or willful misconduct of such party. In theevent that either party hereto seeks to collect any damages resulting from, or the injunction ofany action constituting, a breach of any of the terms or provisions of this Agreement, then theparty found to be at fault shall pay all reasonable costs and attorneys’ fees incurred by the otherparty in such action and any appeal thereof.     21. ***Waivers***. The waiver by either party hereto of a breach or violation of any term or provision of thisAgreement shall not operate nor be construed as a waiver of any subsequent breach or violation.     22. ***No Set-off or Mitigation***. The Company’s obligation to make the payments provided for in this Agreement and otherwiseto perform its obligations hereunder shall not be affected by any set-off, counterclaim,recoupment, defense or other claim, right or action which the Company may have against theExecutive or others. In no event shall the Executive be obligated to seek other employment or takeany other action by way of mitigation of the amounts payable to the Executive under any of theprovisions of this Agreement, and the amounts payable and the benefits to be provided by theCompany to the Executive shall not be mitigated in any way by reason of the Executive’s futureemployment or otherwise.     23. ***Section Headings***. The article, section and paragraph headings contained in this Agreement are for referencepurposes only and shall not affect in any way the meaning or interpretation of this Agreement.     24. ***No Third Party Beneficiary***. Nothing expressed or implied in this Agreement is intended, or shall be construed, toconfer upon or give any person other than the Company, the
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parties hereto and their respective heirs, personal representatives, legal representatives,successors and permitted assigns, any rights or remedies under or by reason of this Agreement.     25. ***Counterparts***. This Agreement may be executed in one or more counterparts, each of which shall be deemedto be an original but all of which together shall constitute one and the same instrument andagreement.     26. ***Indemnification.***          (a) The Company shall indemnify and hold harmless the Executive to the fullest extentpermitted by law from and against any and all claims, damages, expenses (including attorneys’fees), judgments, penalties, fines, settlements, and all other liabilities incurred or paid by himin connection with the investigation, defense, prosecution, settlement or appeal of any threatened,pending or completed action, suit or proceeding, whether civil, criminal, administrative orinvestigative and to which the Executive was or is a party or is threatened to be made a party byreason of the fact that the Executive is or was an officer, director, employee or agent of theCompany or any of its subsidiaries or affiliates, or by reason of anything done or not done by theExecutive in any such capacity or capacities, provided that the Executive acted in good faith, in amanner that was not grossly negligent or constituted willful misconduct and in a manner hereasonably believed to be in or not opposed to the best interests of the Company, and, with respectto any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.The Company also shall pay any and all expenses (including attorney’s fees) incurred by theExecutive as a result of the Executive being called as a witness in connection with any matterinvolving the Company, its subsidiaries or affiliates, and/or any of its officers or directors.          (b) The Company shall pay any expenses (including attorneys’ fees), judgments, penalties,fines, settlements, and other liabilities incurred by the Executive in investigating, defending,settling or appealing any action, suit or proceeding described in this Section 26 in advance of thefinal disposition of such action, suit or proceeding. The Company shall promptly pay the amount ofsuch expenses to the Executive, but in no event later than 10 days following the Executive’sdelivery to the Company of a written request for an advance pursuant to this Section 26, togetherwith a reasonable accounting of such expenses.          (c) The Executive hereby undertakes and agrees to repay to the Company any advances madepursuant to this Section 26 if and to the extent that it shall ultimately be found that theExecutive is not entitled to be indemnified by the Company for such amounts.          (d) The Company shall make the advances contemplated by this Section 26 regardless of theExecutive’s financial ability to make repayment, and regardless whether indemnification of theExecutive by the Company will ultimately be required. Any advances and undertakings to repaypursuant to this Section 26 shall be unsecured and interest-free.          (e) The provisions of this Section 26 shall survive the termination of the Term of Employmentor expiration of the term of this Agreement.
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     IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first abovewritten.       **COMPANY**:       TERREMARK WORLDWIDE, INC., aDelaware corporation       By: /s/ Manuel D. Medina        Name: Manuel D. Medina  Title: Chief Executive Officer and President       **EXECUTIVE**:       /s/ Nelson Fonseca   Nelson Fonseca
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