Exhibit 10.8
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement"), made in New York, New York
as of the 3rd day of April, 2000, between Atlantic Technology Ventures, Inc. a
Delaware corporation having its executive offices and principal place of
business at 000 Xxxxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx (the "Company"), and
Xxxxxxxx X. Xxxxx, an individual currently residing at 0000 Xxxxx Xxxxx Xxxxx,
Xxxxxxxx, Xxx Xxxx ("Executive").
WHEREAS, the Company desires to employ Executive, and
Executive desires to accept such employment on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and
agreements hereinafter set forth, the Company and Executive agree as follows:
1. Term.
The term of this Agreement shall be the three-year period
commencing on April 3, 2000 and ending on April 2, 2003 (the "Term").
2. Employment.
(a) Employment by the Company. Executive agrees to be
employed by the Company during the Term upon the terms and subject to the
conditions set forth in this Agreement. Executive shall serve as an executive of
the Company and shall have such duties as may be prescribed by the Company and
shall serve in such other and/or additional position(s) as the Company may
determine from time to time.
(b) Performance of Duties. Throughout the Term, Executive
shall faithfully and diligently perform Executive's duties in conformity with
the directions of the Company and serve the Company to the best of Executive's
ability. Executive shall devote Executive's entire working time to the business
and affairs of the Company, subject to vacations and sick leave in accordance
with Company policy and as otherwise permitted herein. Until otherwise
determined by the Company, Executive shall have the title of President of the
Company, and in such capacity shall be principally responsible for the
management of the Company and shall report to the Chief Executive Officer and
the Board of Directors of the Company.
(c) Place of Performance. Executive shall be based
initially at the Company's offices in New York, New York or such other
location(s) in the greater New York area as the Company may determine.
Throughout the Term, Executive shall maintain Executive's personal residence
within reasonable access to Executive's place of employment.
3. Compensation and Benefits.
(a) Base Salary. The Company agrees to pay to Executive a
base salary ("Base Salary") at the annual rate of $175,000, payable in equal
installments consistent with the Company's payroll practices.
(b) Signing Bonus. Within thirty days after the execution
of this Agreement, the Company shall pay to Executive a bonus in the amount of
$50,000 (the "Signing Bonus"). Executive shall repay to the Company the Signing
Bonus if Executive is terminated by the Company for Cause (as hereinafter
defined) during the Term or voluntarily resigns his employment hereunder during
the first twelve months of the Term.
(c) Bonus. The Company shall pay to Executive an annual
bonus (the "Bonus") in an amount to be determined by Compensation Committee of
the Board of Directors in its discretion but in no event less than $50,000. In
addition, Executive shall be entitled to participate in any bonus or other
incentive programs as may be established by the Company.
(d) Grant of Options and Terms Thereof.
(i) The Board of Directors has approved, and the
Company has granted to Executive, an option (the "Plan Option"), pursuant to the
Company's 1995 Stock Incentive Plan, to purchase one hundred thousand (100,000)
shares of the Company's common stock (the "Plan Option Shares"), subject to
vesting as set forth below. The exercise price for each Plan Option Share shall
be equal to the market value of a share of the Company's common stock on the
date of the grant of the Plan Option. The Plan Option Shares shall vest in four
equal installments, the first such installment to vest on the first day of the
Term and each subsequent installment to vest, respectively, on the first,
second, and third anniversary of the grant of the Plan Option, provided that
Executive is employed by the Company on each such vesting date. All other terms
(including exercisability) of the Plan Option shall be governed by the Company's
Stock Incentive Plan, as well as the applicable option agreement to be entered
into pursuant to the terms of such plan.
(ii) In order to induce Executive to enter into this
Agreement and to become employed by the Company pursuant to the terms hereof,
the Board of Directors has approved, and the Company has granted to Executive,
an option (the "Non-Plan Option") to purchase one hundred thousand (150,000)
shares of the Company's common stock (the "Non-Plan Option Shares"), subject to
vesting as set forth below. The exercise price for each Non-Plan Option Share
shall be equal to the market value of a share of the Company's common stock on
the date of the grant of the Non-Plan Option. The Non-Plan Option Shares shall
vest in four equal installments, the first such installment to vest on the first
day of the Term and each subsequent installment to vest, respectively, on the
first, second, and third anniversary of the grant of the Non-Plan Option,
provided that Executive is employed by the Company on each such vesting date.
All other terms (including exercisability) of the Non-Plan Option shall be
governed by the applicable option agreement to be entered into by the Company
and Executive and shall otherwise be subject to the terms set forth in the
Company's 1995 Stock Incentive Plan, it being recognized that the Non-Plan
Option has not been granted under such plan.
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(e) Benefits and Perquisites. Executive shall be entitled
to participate in, to the extent Executive is otherwise eligible under the terms
thereof, the benefit plans and programs, and receive the benefits and
perquisites, generally provided to executives of the same level and
responsibility as Executive, including without limitation family medical
insurance and life insurance (subject to applicable employee contributions).
Executive shall be entitled to four weeks of vacation per year.
(f) Travel and Business Expenses. Upon submission of
itemized expense statements in the manner specified by the Company, Executive
shall be entitled to reimbursement for reasonable travel and other reasonable
business expenses duly incurred by Executive in the performance of Executive's
duties under this Agreement in accordance with the policies and procedures
established by the Company from time to time for executives of the same level
and responsibility as Executive.
(g) Relocation Expenses. The Company shall reimburse
Executive for such expenses reasonably incurred by Executive in connection with
the relocation of his residence to New York, New York or its immediate vicinity
upon submission of documentation in a form reasonably acceptable to the Company.
In addition, Executive shall be entitled to reimbursement of rent and similar
temporary living expenses incurred by him during the first three months of the
Term in connection with his maintenance of a residence in New York, New York to
the extent he continues to maintain his current residence in Melville, New York.
, Executive must consult with and receive approval from the Company's Chief
Executive Officer, which approval shall not be unreasonably withheld, prior to
incurring any such expenses. Executive shall be required to repay to the Company
any relocation and temporary living expenses reimbursed pursuant to this Section
3(f) if Executive's employment hereunder is terminated (i) by the Company for
Cause during the Term or (ii) as a result of Executive's voluntary resignation
during the first twelve months of the Term.
(h) Waiver of Compensation for Board Service. Executive
waives any right to receive additional compensation in respect of service as a
director of the Company or a member of any committees of the Board of Directors,
and agrees that the consideration set forth in this Agreement shall constitute
compensation for such services as may be requested of Executive by the Company.
(i) Waiver of Compensation From Other Sources. Executive
acknowledges and agrees that any compensation, property, or other emoluments to
be received by him, directly or indirectly, in connection with any transaction
involving the Company or any business of the Company shall be considered
property of the Company and upon receipt Executive shall deliver such
compensation, property, or emoluments to the Company for its sole benefit.
Executive hereby assigns to the Company any existing right to receive any such
compensation, property, or emoluments.
(j) No Other Compensation or Benefits; Payment. The
compensation and benefits specified in this Section 3 and in Section 4 of this
Agreement shall be in lieu of any and all other compensation and benefits.
Payment of all compensation and benefits to Executive hereunder shall be made in
accordance with the relevant Company policies in effect from time to
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time to the extent the same are consistently applied, including normal payroll
practices, and shall be subject to all applicable employment and withholding
taxes and other withholdings.
(k) Cessation of Employment. In the event Executive shall
cease to be employed by the Company for any reason, then Executive's
compensation and benefits shall cease on the date of such event, except as
otherwise provided herein or in any applicable employee benefit plan or program.
4. Termination of Employment.
(a) Termination. The Company may terminate Executive's
employment for Cause (as defined below) or for any breach of this Agreement, in
which case the provisions of Section 4(b) of this Agreement shall apply. The
Company may also terminate Executive's employment in the event of Executive's
Disability (as defined below), in which case the provisions of Section 4(c) of
this Agreement shall apply. The Company may also terminate the Executive's
employment for any other reason by written notice to Executive, in which case
the provisions of Section 4(d) of this Agreement shall apply. If Executive's
employment is terminated by reason of Executive's death, retirement or voluntary
resignation, the provisions of Section 4(b) of this Agreement shall apply.
(b) Termination for Cause; Termination by Reason of Death
or Retirement or Voluntary Resignation. In the event that Executive's employment
hereunder is terminated during the Term (x) by the Company for Cause (as defined
below), (y) by reason of Executive's death or retirement or (z) by reason of
Executive's voluntary resignation, then the Company shall pay to Executive only
the Base Salary through such date of termination. For purposes of this
Agreement, "Cause" shall mean (i) conviction of any crime (whether or not
involving the Company) constituting a felony in the jurisdiction involved; (ii)
engaging in any substantiated act involving moral turpitude; (iii) engaging in
any act which, in each case, subjects, or if generally known would subject, the
Company to public ridicule or embarrassment; (iv) gross neglect or misconduct in
the performance of Executive's duties hereunder; (v) willful failure or refusal
to perform such duties as may reasonably be delegated to Executive; or (vi)
material breach of any provision of this Agreement by Executive; provided,
however, that with respect to clauses (iv), (v) or (vi), Executive shall have
received written notice from the Company setting forth the alleged act or
failure to act constituting "Cause" hereunder, and Executive shall not have
cured such act or refusal to act within 10 business days of his actual receipt
of notice.
(c) Disability. If, as a result of Executive's incapacity
due to physical or mental illness, Executive shall have been absent from
Executive's duties hereunder on a full time basis for either (i) one hundred
twenty (120) days within any three hundred sixty-five (365) day period, or (ii)
ninety (90) consecutive days, the Company may terminate Executive's employment
hereunder for "Disability". In that event, the Company shall pay to Executive
only the Base Salary through such date of termination. During any period that
Executive fails to perform Executive's duties hereunder as a result of
incapacity due to physical or mental illness (a "Disability Period"), Executive
shall continue to receive the compensation and benefits provided by Section 3 of
this Agreement until Executive's employment hereunder is terminated; provided,
however, that the amount of compensation and benefits received by Executive
during the
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Disability Period shall be reduced by the aggregate amounts, if any, payable to
Executive under disability benefit plans and programs of the Company or under
the Social Security disability insurance program.
(d) Termination By Company For Any Other Reason. In the
event that Executive's employment hereunder is terminated by the Company during
the Term for any reason other than as provided in Section 4(b) or 4(c) of this
Agreement, then the Company shall pay to Executive the Base Salary through such
date of termination and, in lieu of any further compensation and benefits for
the balance of the Term, severance pay equal to the Base Salary that Executive
would have otherwise received during the period beginning on such date of
termination and ending on the earlier of (i) six (6) months from the effective
date of such termination and (ii) the last day of the Term, which severance pay
shall be paid commencing with such date of termination at the times and in the
amounts such Base Salary would have been paid. Notwithstanding anything to the
contrary contained herein, in the event that Executive shall breach Section 5 or
6 of this Agreement, in addition to any other remedies the Company may have in
the event Executive breaches this Agreement, the Company's obligation pursuant
to this Section 4(d) to continue such salary shall cease and Executive's rights
thereto shall terminate and shall be forfeited.
(e) No Further Liability; Release. Payment made and
performance by the Company in accordance with this Section 4 shall operate to
fully discharge and release the Company and its directors, officers, employees,
subsidiaries, affiliates, stockholders, successors, assigns, agents and
representatives from any further obligation or liability with respect to
Executive's employment and termination of employment. Other than paying
Executive's Base Salary through the date of termination of Executive's
employment and making any severance payment pursuant to and in accordance with
this Section 4 (as applicable), the Company and its directors, officers,
employees, subsidiaries, affiliates, stockholders, successors, assigns, agents
and representatives shall have no further obligation or liability to Executive
or any other person under this Agreement. The Company shall have the right to
condition the payment of any severance pursuant to this Section 4 upon the
delivery by Executive to the Company of a release in form and substance
satisfactory to the Company of any and all claims Executive may have against the
Company and its directors, officers, employees, subsidiaries, affiliates,
stockholders, successors, assigns, agents and representatives arising out of or
related to Executive's employment by the Company and the termination of such
employment.
5. Exclusive Employment; Noncompetition.
(a) No Conflict; No Other Employment. During the period of
Executive's employment with the Company, Executive shall not: (i) engage in any
activity which conflicts or interferes with or derogates from the performance of
Executive's duties hereunder nor shall Executive engage in any other business
activity, whether or not such business activity is pursued for gain or profit,
except as approved in advance in writing by the Chief Executive Officer or the
Board of Directors of the Company; provided, however, that Executive shall be
entitled to manage his personal investments and otherwise attend to personal
affairs, including charitable activities, in a manner that does not unreasonably
interfere with his responsibilities hereunder, or (ii) accept any other
employment, whether as an executive or
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consultant or in any other capacity, and whether or not compensated therefor,
unless Executive receives the prior approval of the Board of Directors.
(b) No Competition. Executive recognizes the highly
competitive nature of the Company's business and that Executive's position with
the Company and access to and use of the Company's confidential records and
proprietary information renders Executive special and unique. Without limiting
the generality of the provisions of Section 2(b) or 5(a) of this Agreement,
during the Term and for a period of one year after the termination of
Executive's employment with the Company for any reason, Executive shall not,
directly or indirectly, own, manage, operate, join, control, participate in,
invest in or otherwise be connected or associated with, in any manner, including
as an officer, director, employee, independent contractor, stockholder, member,
partner, consultant, advisor, agent, proprietor, trustee or investor, any
Competing Business located in the United States; provided, however, that
ownership of 2% or less of the stock or other securities of a corporation, the
stock of which is listed on a national securities exchange or is quoted on The
Nasdaq Stock Market, shall not constitute a breach of this Section 4, so long as
Executive does not in fact have the power to control, or direct the management
of, or is not otherwise associated with, such corporation.
For purposes hereof, the term "Competing Business" shall mean
any business or venture which, directly or indirectly, engages in a business
that competes with the business of any Related Entity. The term Related Entity
shall include all operating subsidiaries of the Company and all other business
entities in which the Company has an ownership interest, together with all
affiliates thereof.
(c) No Solicitation of Employment. During the Term and for
a period of two years thereafter, Executive shall not solicit or encourage any
employee of the Company or any Related Entity to leave the Company or such
Related Entity for any reason, nor assist any business in doing so, nor employ
such an employee in a Competing Business or any other business.
(d) Company Customers. Executive shall not, during the Term
and for a period of one year thereafter, except as required by the Company in
the performance by Executive of his duties under this Agreement, directly or
indirectly, on behalf of a Competing Business, contact, solicit or do business
with any "customers" (as defined below) of any Related Entity for the purpose of
selling or licensing any product, service, or technology then sold or licensed
by such Related Entity the Company or proposed to be sold or licensed by such
Related Entity. For the purposes of the provisions of this Section 5(d),
"customer" shall include any entity that, within two years prior to the
termination of Executive's employment hereunder, purchased or licensed any
product, service, or technology from such Related Entity. The term "customer"
also includes any former customer or potential customer of a Related Entity
which the Related Entity has solicited within two years prior to the termination
of Executive's employment hereunder for the purpose of selling or licensing any
product, service, or technology then sold or licensed by the Company or proposed
to be sold or licensed.
(e) Executive understands that the provisions of this
Section 5 may limit his ability to earn a livelihood in a business that competes
with the business of the Related Entities but nevertheless agrees and hereby
acknowledges that the consideration provided under
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this Agreement is sufficient to justify the restrictions contained in such
provisions. In consideration thereof and in light of Executive's education,
skills and abilities, Executive agrees that he will not assert in any forum that
such provisions prevent him from earning a living or otherwise are void or
unenforceable or should be held void or unenforceable.
6. Confidential Information.
(a) Existence of Confidential Information. The Company and
each Related Entity owns and has developed and compiled, and will develop and
compile, certain proprietary techniques and confidential information which have
great value to its business (referred to in this Agreement, collectively, as
"Confidential Information"). Confidential Information includes not only
information disclosed by the Company or any Related Entity to Executive, but
also information developed or learned by Executive during the course or as a
result of employment with the Company, which information shall be the property
of the Company or the applicable Related Entity. Confidential Information
includes all information that has or could have commercial value or other
utility in the businesses in which the Company or any Related Entity is engaged
or contemplates engaging, and all information of which the unauthorized
disclosure could be detrimental to the interests of the Company or any Related
Entity, whether or not such information is specifically labeled as Confidential
Information by such entity. By way of example and without limitation,
Confidential Information includes any and all information developed, obtained,
licensed by or to or owned by the Company or any Related Entity concerning trade
secrets, techniques, know-how (including designs, plans, procedures,
merchandising, marketing, distribution and warehousing know-how, processes, and
research records), software, computer programs and designs, development tools,
all proprietary property, and any other intellectual property created, used or
sold (through a license or otherwise) by the Company or a Related Entity,
electronic data information know-how and processes, innovations, discoveries,
improvements, research, development, test results, reports, specifications,
data, formats, marketing data and plans, business plans, strategies, forecasts,
unpublished financial information, orders, agreements and other forms of
documents, price and cost information, merchandising opportunities, expansion
plans, budgets, projections, customer, supplier, licensee, licensor and
subcontractor identities, characteristics, agreements and operating procedures,
and salary, staffing and employment information.
(b) Protection of Confidential Information. Executive
acknowledges and agrees that in the performance of Executive's duties hereunder
the Company and the Related Entities may disclose to and entrust Executive with
Confidential Information which is the exclusive property of such entities and
which Executive may possess or use only in the performance of Executive's duties
to the Company. Executive also acknowledges that Executive is aware that the
unauthorized disclosure of Confidential Information, among other things, may be
prejudicial to the Company's interests or those of a Related Entity, an invasion
of privacy and an improper disclosure of trade secrets. Executive shall not,
directly or indirectly, use, make available, sell, disclose or otherwise
communicate to any corporation, partnership or other entity, individual or other
third party, other than in the course of Executive's assigned duties and for the
benefit of the Company, any Confidential Information, either during the Term or
thereafter. In the event Executive desires to publish the results of Executive's
work for or experiences with the Company or any Related Entity through
literature, interviews or speeches, Executive will submit requests for such
interviews or such literature or speeches to the Chief Executive Officer of the
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Company at least fourteen (14) days before any anticipated dissemination of such
information for a determination of whether such disclosure is in the best
interests of the Company, including whether such disclosure may impair trade
secret status or constitute an invasion of privacy. Executive agrees not to
publish, disclose or otherwise disseminate such information without the prior
written approval of the Chief Executive Officer of the Company.
(c) Delivery of Records, Etc. In the event Executive's
employment with the Company ceases for any reason, Executive will not remove
from the Company's premises without its prior written consent any records
(written or electronic), files, drawings, documents, equipment, materials and
writings received from, created for or belonging to the Company or any Related
Entity, including those which relate to or contain Confidential Information, or
any copies thereof. Upon request or when employment with the Company terminates,
Executive will immediately deliver the same to the Company.
7. Assignment and Transfer.
(a) Company. This Agreement shall inure to the benefit of
and be enforceable by, and may be assigned by the Company to, any purchaser of
all or substantially all of the Company's business or assets, any successor to
the Company or any assignee thereof (whether direct or indirect, by purchase,
merger, consolidation or otherwise).
(b) Executive. Executive's rights and obligations under
this Agreement shall not be transferable by Executive by assignment or
otherwise, and any purported assignment, transfer or delegation thereof shall be
void; provided, however, that if Executive shall die, all amounts then payable
to Executive hereunder shall be paid in accordance with the terms of this
Agreement to Executive's devisee, legatee or other designee or, if there be no
such designee, to Executive's estate.
8. Miscellaneous.
(a) Other Obligations. Executive represents and warrants
that neither Executive's employment with the Company nor Executive's performance
of Executive's obligations hereunder will conflict with or violate or otherwise
are inconsistent with any other obligations, legal or otherwise, which Executive
may have. Executive covenants that he shall perform his duties hereunder in a
professional manner and not in conflict or violation, or otherwise inconsistent
with other obligations legal or otherwise, which Executive may have.
(b) Nondisclosure; Other Employers. Executive will not
disclose to the Company, or use, or induce the Company to use, any proprietary
information, trade secrets or confidential business information of others.
Executive represents and warrants that Executive does not possess any property,
proprietary information, trade secrets and confidential business information
belonging to all prior employers.
(c) Cooperation. Following termination of employment with
the Company for any reason, Executive shall cooperate with the Company, as
requested by the Company, to affect a transition of Executive's responsibilities
and to ensure that the Company is aware of all matters being handled by
Executive.
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(d) No Duty to Mitigate. Executive shall be under no duty
to mitigate any losses or damage to the Company with respect to any severance or
other amounts payable pursuant to Section 4 of this Agreement.
(e) Protection of Reputation. During the Term and
thereafter, Executive agrees that he will take not action which is intended, or
would reasonably be expected, to harm the Company or its reputation or which
would reasonably be expected to lead to unwanted or unfavorable publicity to the
Company.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
regard to principles of the conflict of laws thereof.
(g) Jurisdiction; Forum. Each party hereto consents and
submits to the jurisdiction of any state or federal court sitting in the State,
City, and County of New York in connection with any dispute arising out of or
relating to this Agreement. Each party hereto waives any objection to the laying
of venue in such courts and any claim that any such action has been brought in
an inconvenient forum. To the extent permitted by law, any judgment in respect
of a dispute arising out of or relating to this Agreement may be enforced in any
other jurisdiction within or outside the United States by suit on the judgment,
a certified copy of such judgment being conclusive evidence of the fact and
amount of such judgment.
(h) Waiver of Jury Trial. Each of the parties hereto
irrevocably waives any and all right to trial by jury with respect to any
action, claim or other proceeding arising out of or relating to this Agreement.
(i) Entire Agreement. This Agreement (including all
exhibits and schedules hereto) contains the entire agreement and understanding
between the parties hereto in respect of Executive's employment and supersedes,
cancels and annuls any prior or contemporaneous written or oral agreements,
understandings, commitments and practices between them respecting Executive's
employment, including all prior employment agreements, if any, between the
Company and Executive, which agreement(s) hereby are terminated and shall be of
no further force or effect.
(j) Amendment. This Agreement may be amended only by a
writing which makes express reference to this Agreement as the subject of such
amendment and which is signed by Executive and, on behalf of the Company, by its
duly authorized officer.
(k) Severability. If any term, provision, covenant or
condition of this Agreement or part thereof, or the application thereof to any
person, place or circumstance, shall be held to be invalid, unenforceable or
void by a court of competent jurisdiction, the remainder of this Agreement and
such term, provision, covenant or condition shall remain in full force and
effect, and any such invalid, unenforceable or void term, provision, covenant or
condition shall be deemed, without further action on the part of the parties
hereto, modified, amended and limited, and the court shall have the power to
modify, to the extent necessary to render the same and the remainder of this
Agreement valid, enforceable and lawful. In this regard, Executive
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acknowledges that the provisions of Sections 5 and 6 of this Agreement are
reasonable and necessary for the protection of the Company.
(l) Construction. The headings and captions of this
Agreement are provided for convenience only and are intended to have no effect
in construing or interpreting this Agreement. The language in all parts of this
Agreement shall be in all cases construed according to its fair meaning and not
strictly for or against the Company or Executive. The use herein of the word
"including," when following any general provision, sentence, clause, statement,
term or matter, shall be deemed to mean "including, without limitation." As used
herein, "Company" shall mean the Company and its subsidiaries and any purchaser
of, successor to or assignee (whether direct or indirect, by purchase, merger,
consolidation or otherwise) of all or substantially all of the Company's
business or assets which is obligated to perform this Agreement by operation of
law, agreement pursuant to Section 7 of this Agreement or otherwise. As used
herein, the words "day" or "days" shall mean a calendar day or days.
(m) Nonwaiver. Neither any course of dealing nor any
failure or neglect of either party hereto in any instance to exercise any right,
power or privilege hereunder or under law shall constitute a waiver of any other
right, power or privilege or of the same right, power or privilege in any other
instance. All waivers by either party hereto must be contained in a written
instrument signed by the party to be charged and, in the case of the Company, by
its duly authorized officer.
(n) Remedies for Breach. The parties hereto agree that
Executive is obligated under this Agreement to render personal services during
the Term of a special, unique, unusual, extraordinary and intellectual
character, thereby giving this Agreement special value, and, in the event of a
breach or threatened breach of any covenant of Executive herein, the injury or
imminent injury to the value and the goodwill of the Company's business could
not be reasonably or adequately compensated in damages in an action at law.
Accordingly, Executive expressly acknowledges that the Company shall be entitled
to specific performance, injunctive relief or any other equitable remedy against
Executive, without the posting of a bond, in the event of any breach or
threatened breach of any provision of this Agreement by Executive (including,
without limitation, Sections 5 and 6). Without limiting the generality of the
foregoing, if Executive breaches or threatens to breach Section 5 or 6 of this
Agreement, such breach or threatened breach will entitle the Company, without
posting of bond, to an injunction prohibiting (i) Executive from disclosing any
Confidential Information to any Competing Business; (ii) such Competing Business
from receiving from Executive or using any such Confidential Information; and
(iii) Executive from, indirectly or directly, owning, managing, operating,
joining, controlling, participating in, investing in or otherwise being
connected or associated with, in any manner, any such Competing Business. The
rights and remedies of the parties hereto are cumulative and shall not be
exclusive, and each such party shall be entitled to pursue all legal and
equitable rights and remedies and to secure performance of the obligations and
duties of the other under this Agreement, and the enforcement of one or more of
such rights and remedies by a party shall in no way preclude such party from
pursuing, at the same time or subsequently, any and all other rights and
remedies available to it.
(o) Notices. Any notice, request, consent or approval
required or permitted to be given under this Agreement or pursuant to law shall
be sufficient if in writing,
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and if and when sent by certified or registered mail, return receipt requested,
with postage prepaid, to Executive's residence (as reflected in the Company's
records or as otherwise designated by Executive on thirty (30) days' prior
written notice to the Company) or to the Company's principal executive office,
attention: President, as the case may be. All such notices, requests, consents
and approvals shall be effective upon being deposited in the United States mail.
However, the time period in which a response thereto must be given shall
commence to run from the date of receipt on the return receipt of the notice,
request, consent or approval by the addressee thereof. Rejection or other
refusal to accept, or the inability to deliver because of changed address of
which no notice was given as provided herein, shall be deemed to be receipt of
the notice, request, consent or approval sent.
(p) Assistance in Proceedings, Etc. Executive shall,
without additional compensation, during and after expiration of the Term, upon
reasonable notice, furnish such information and proper assistance to the Company
as may reasonably be required by the Company in connection with any legal or
quasi-legal proceeding, including any external or internal investigation,
involving the Company or any of its affiliates or in which any of them is, or
may become, a party.
(q) Survival. Cessation or termination of Executive's
employment with the Company shall not result in termination of this Agreement.
The respective obligations of Executive and rights and benefits afforded to the
Company as provided in this Agreement shall survive cessation or termination of
Executive's employment hereunder.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be duly executed on its behalf by an officer thereunto duly authorized and
Executive has duly executed this Agreement, all as of the date and year first
written above.
ATLANTIC TECHNOLOGY VENTURES, INC. EXECUTIVE:
By:______________________________ ____________________________
Name: Xxxxxxxx X. Xxxxx
Title:
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