EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN
ALCOHOL SENSORS INTERNATIONAL, LTD. AND XXXXXX X. XXXXXX
This EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is dated as of
September 1, 1998 (the "Effective Date"), between ALCOHOL SENSORS INTERNATIONAL,
LTD., a New York corporation (the "Corporation"), and XXXXXX X. XXXXXX (the
"Executive").
WHEREAS, the Corporation desires to employ Executive as the
Corporation's President and Chief Operating Officer, upon the terms and
conditions as hereinafter set forth; and
WHEREAS, Executive desires to accept such employment with the
Corporation upon such terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
set forth herein and other good and valuable consideration, the receipt and
adequacy is hereby acknowledged, the parties hereto agree as follows:
1. Employment and Duties.
(a) The Corporation hereby employs Executive and Executive accepts the
employment with the Corporation in the positions of President and Chief
Operating Officer of the Corporation.
(b) As President and Chief Operating Officer of the Corporation, Executive
shall perform such duties and services, consistent with such positions, as may
be assigned to Executive from time to time by the Board of Directors of the
Corporation (the "Board") or the Board's designee.
(c) Executive covenants and agrees to perform faithfully and to the best of
Executive's abilities such duties and other reasonable executive duties and
responsibilities assigned to Executive from time to time by the Board or the
Board's designee.
(d) The Corporation hereby covenants and agrees that, for the term of this
Agreement, the Board will nominate and use the Board's best efforts to cause the
election of Executive as a member of the Board.
2. Term of Agreement.
(a) Subject to the terms and conditions set forth in this Agreement, the
term of Executive's employment by the Corporation and this Agreement shall
commence on the Effective Date and shall terminate on the third anniversary of
the Effective Date (the "Initial Term").
(b) The term of employment of Executive and this Agreement, as set forth in
Paragraph 2(a) above, shall automatically be extended, without any further
action by the Corporation or Executive, for successive one year periods (each,
an "Option Term" and, collectively with the Initial Term, the "Term of this
Agreement"), on the same terms and conditions as set forth in this Agreement. If
either party shall desire to terminate Executive's employment by the Corporation
or this Agreement, at the end of the Initial Term or any Option Term, such party
shall give written notice of such desire to the other party at least 90 days
prior to the expiration of the Initial Term or such Option Term, as the case may
be. At the expiration of the Initial Term or then existing Option Term, as the
case may be, the Corporation shall have no further obligation to Executive, and
Executive shall have no further obligation to Corporation, except with respect
to (i) Executive's obligations to the Corporation pursuant to Sections 7, 8 and
10, (ii) the Corporation's obligations to Executive pursuant to Section 5 and
(iii) any other obligations the Corporation may have to Executive and/or
Executive may have to the Corporation under applicable law governing the
relationship of an employer to an employee and/or an employee to an employer
upon and following termination of such relationship.
3. Time to be Devoted to Employment. Executive agrees to devote Executive's full
time, attention, efforts, loyalties and energies to the business and affairs of
the Corporation. Notwithstanding the immediately preceding sentence, Executive
shall be permitted to devote a reasonable amount of time, attention and energies
to reasonable community activities and public affairs, provided such engagement
shall not in any way conflict with the business of any of the Companies (as such
term is defined in Section 4).
4. Restriction on Other Employment; Relationship of Corporation to Parent and
the Companies.
(a) During the term of employment and the term of this Agreement, Executive
agrees that, without the prior approval of the Board, Executive shall not accept
a membership on or otherwise become a member of a board of directors, act as an
officer, employee or consultant or engage in any other business activity,
whether or not such other business is a similar or competing business with the
Corporation or any subsidiary (each, a "Company" and, together with the
Corporation, the "Companies") or parent ("Parent") of the Corporation, whether
presently existing or hereafter created or acquired, that would in any way
conflict with the business of any of the Companies or the time required by
Executive to perform Executive's duties to the Corporation. It is expressly
acknowledged by the Corporation that Executive is a director of Medibasics
Technologies, Inc. and the Corporation agrees to permit Executive to continue in
such capacity, provided that such entity does not enter a business which is
similar or competing with the Companies or Parent or the time which Executive is
required to devote to such entity would conflict with the time required by
Executive to perform Executives' duties to the Companies.
(b) It is expressly understood that the Corporation may require Executive
to devote Executive's efforts and be assigned duties relating to the operations
of any or all of the Companies, without further compensation from the
Corporation or any of the Companies. It is understood and agreed that Executive
will hold the same offices with all of the Companies as Executive shall hold
under this Agreement, unless the Board, in the Board's sole discretion, shall
determine otherwise.
5. Compensation; Reimbursement.
(a) Commencing as of the Effective Date, the Corporation shall pay to
Executive an annual base salary (the "Base Salary") of $150,000 ($182,500, as of
January 1, 1999), payable in equal weekly installments or in the manner and on
the timetable which the Corporation's payroll is customarily handled or at such
intervals as the Corporation and Executive may hereafter agree to from time to
time. Commencing with the first anniversary of the Effective Date and on each
anniversary thereafter during the Term of this Agreement (each, a "Base Salary
Adjustment Date"), the Base Salary shall be subject to a cost of living
adjustment equal to the Base Salary as in effect on such Base Salary Adjustment
Date multiplied by a fraction, the numerator of which shall be the Consumer
Price Index for the New York/New Jersey Metropolitan Area (All Employees) as
published by the Bureau of Labor Statistics of the United States Department of
Labor (the "COLA Index") in effect on such Base Salary Adjustment Date and the
denominator of which shall be the COLA Index in effect on the later of the
Effective Date or the immediately preceding Base Salary Adjustment Date. In any
year in which the COLA Index is not available, the Board shall, in the Board's
reasonable discretion, find and use a similar governmental publication or
similar criteria for the COLA Index to be used for the numerator for the
purposes of this Paragraph 5(a) and shall, retroactively, establish the COLA
Index to be used for the denominator for the purposes of this Paragraph 5(a)
using such similar publication or criteria. Executive's Base Salary may, but is
not required to, be increased from time to time, based upon Executive's
performance and other relevant factors, as the Board may deem appropriate,
without affecting any other provisions of this Agreement. Once so increased in
accordance with the immediately preceding sentence, the Base Salary may not be
thereafter decreased without the prior written consent of Executive.
(b) In addition to receiving the Base Salary provided for in Paragraph
5(a), Employee shall be entitled to receive the following incentive compensation
(the "Incentive Compensation") based upon the annual Discretionary Income (as
hereinafter defined) of the Companies on a consolidated basis:
(i) Executive shall be entitled to receive Incentive Compensation
in the amount of $50,000 if the Discretionary Income for the 1998 calendar
year shall equal or exceed $1, payable no later than April 30, 1999;
(ii) Executive shall be entitled to receive Incentive
Compensation in the amount equal to 4% of all Discretionary Income for the
1999 calendar year, payable no later than April 30, 2000;
(iii) Executive shall be entitled to receive Incentive
Compensation in the amount equal to 4% of all Discretionary Income for the
2000 calendar year, payable no later than April 30, 2001; and
(iv) Executive shall be entitled to receive Incentive
Compensation in the amount equal to 4% of all Discretionary Income for each
of the 2001 calendar year and each calendar year thereafter, provided that
this Agreement shall be in effect on the last day of such calendar year.
Each such Incentive Compensation amounts to be payable no later than
April 30th of the calendar year following the calendar year in which the
Discretionary Income is applicable. Along with a check in the amount of the
Incentive Compensation, Executive shall receive a schedule, prepared by the
Chief Financial Officer of the Corporation, setting forth the amount of the
Incentive Compensation and a description of the manner in which it was
calculated.
For purposes of this Agreement, "Discretionary Income" shall mean the
annual net consolidated income after taxes of the Companies, determined by the
certified public accounting firm of the Corporation or Parent, if Parent shall
then be in existence, calculated in accordance with generally accepted
accounting principles, minus all Incentive Compensation payments due or owing
pursuant to this Paragraph 5(b) and all extraordinary items. The calculation of
Discretionary Income for purposes of this Paragraph 5(b) shall not include any
transactions between or among the Companies.
(c) In addition to receiving the Base Salary provided for in Paragraph 5(a)
and the Incentive Compensation, if any, provided for in Paragraph 5(b), during
the Term of this Agreement, Employee shall be entitled to receive a car
allowance (the "Car Allowance") of $600 per month, payable in advance,
commencing as of the first day of the first calendar month following the
Effective Date. It is agreed by the parties hereto that the payment of the Car
Allowance is in lieu of any right of Executive to reimbursement of costs related
the use by Executive of Executive's personal motor vehicle, including, but not
limited to, insurance, repair, maintenance, mileage charges and fuel costs, but
does not include parking and toll charges (the "Other Car Expenses") reasonably
incurred on the Corporation's behalf, such Other Car Expenses to be reimbursed
by the Corporation upon submission of a detailed accounting for such Other Car
Expenses by Executive to the Corporation. Commencing with the first anniversary
of the Effective Date and on each anniversary thereafter during the Term of this
Agreement (each, a "Car Allowance Adjustment Date"), the Car Allowance shall be
subject to a cost of living adjustment equal to the Car Allowance as in effect
on such Car Allowance Adjustment Date multiplied by a fraction, the numerator of
which shall be the COLA Index in effect on such Car Allowance Adjustment Date
and the denominator of which shall be the COLA Index in effect on the later of
the Effective Date or the immediately preceding Car Allowance Adjustment Date.
In any year in which the COLA Index is not available, the Board shall, in the
Board's reasonable discretion, find and use a similar governmental publication
or similar criteria for the COLA Index to be used for the numerator for the
purposes of this Paragraph 5(c) and shall, retroactively, establish the COLA
Index to be used for the denominator for the purposes of this Paragraph 5(c)
using such similar publication or criteria. Executive's Car Allowance may, but
is not required to, be increased from time to time, based upon Executive's
performance and other relevant factors, as the Board may deem appropriate,
without affecting any other provisions of this Agreement. Once so increased in
accordance with the immediately preceding sentence, the Car Allowance may not be
thereafter decreased without the prior written consent of Executive.
(d) During the Term of this Agreement, Executive shall be entitled to such
fringe benefits, including, but not limited to, medical, health, disability and
other insurance benefits, as are made available from time to time to other
executive officers of the Corporation or any of the Companies. Whether or not
available to others, Executive and Executive's immediate family shall
specifically be entitled to medical insurance coverage, paid for by the
Corporation, provided that Executive and Executive's immediate family shall
qualify for such coverage. For purposes of this Agreement, the term "Executive's
immediate family" shall mean Executive's spouse and minor children.
(e) The Corporation shall reimburse the Executive, in accordance with the
practice followed from time to time for other officers of the Corporation, for
all reasonable and necessary business and traveling expenses, except as provided
in Paragraph 5(c) above, and other disbursements incurred by Executive for or on
behalf of the Corporation in the performance of Executive's duties hereunder
upon presentation by the Executive to the Corporation of an appropriate detailed
accounting of such expenses and disbursements.
(f) In addition to receiving the Base Salary provided for in Paragraph 5(a)
and the Incentive Compensation, if any, provided for in Paragraph 5(b), (i) upon
the execution of this Agreement and the surrender by Executive of options to
purchase an aggregate 174,500 shares of the common stock, par value $.001 per
share (the "Common Stock"), of the Corporation, the Corporation shall grant to
Executive options to purchase 25,000, 104,500, 45,000 and 200,000 shares of
Common Stock, evidenced by option agreements, to be delivered to Executive at
such execution and surrender, substantially in the forms annexed to this
Agreement as Exhibits A, B, C and D, respectively, (ii) upon the execution of
this Agreement, the Corporation shall grant to Executive, under the
Corporation's 1998 Stock Incentive Plan, an option to purchase 200,000 shares of
Common Stock, evidenced by an option agreement, to be delivered at such
execution, substantially in the form annexed to this Agreement as Exhibit E, and
(iii) on each anniversary of the Effective Date occurring during the Term of
this Agreement, the Corporation shall grant to Executive, under the
Corporation's 1998 Stock Incentive Plan (or successor plan), options to purchase
50,000 shares of Common Stock, at an exercise price equal to the per share last
sale price of the Common Stock on such anniversary date evidenced by option
agreements, to be delivered on such anniversary date, substantially in the form
annexed to this Agreement as Exhibit F.
(g) Executive shall use Executive's best efforts to obtain and maintain for
the Term of this Agreement "key man" term life insurance on the life of
Executive in the amount of $2,000,000, the first $1,000,000 of which shall be
payable to the Corporation as beneficiary and the second $1,000,000 of which
shall be payable to Executive's designee(s). Executive shall have the right to
change Executive's designee(s), at Executive's sole discretion, subject to the
provisions of the applicable insurance policy. The entire premium expense for
such life insurance shall be paid by the Corporation.
6. Termination of Employment.
(a) Executive's employment by the Corporation and this Agreement shall
terminate in the event of the death of Executive.
(b) The Corporation may terminate this Agreement and Executive's employment
for cause, and, in such an event, the Corporation shall only be obligated to pay
Executive the Base Salary through the date of such termination. Prior to any
termination pursuant to this Paragraph 6(b), the Corporation must give Executive
reasonable written notice and adequate opportunity to respond to the reasons for
such termination or, where applicable, cure. For purposes of this Paragraph
6(b), "cause" shall mean that the Board has made a reasonable determination that
Executive has:
(i) committed a fraud against any of the Companies,
(ii) misappropriated or done material, intentional damage to the
property of any of the Companies,
(iii) been convicted of a felony involving personal dishonesty,
moral turpitude, or willfully violent conduct,
(iv) engaged in gross business misconduct, (v) engaged in gross
malfeasance of Executive's duties, (vi) materially breached any
provision of this Agreement, or
(vii) failed, on account of a medical disability, to
substantially perform Executive's duties of employment for a period of 180
consecutive calendar days and the finding by the Board, in the exercise of
the Board's reasonable discretion, that Executive will not be able to
substantially perform Executive's duties for the shorter of (A) at least a
period of an additional 180 calendar days during the Term of this Agreement
or (B) for the remainder of the Term of this Agreement.
For purposes of a determination by the Board pursuant to this
Paragraph 6(b), Executive agrees to abstain from voting on any motion for
termination for cause by the Board.
(c) If, for any reason, Executive's employment is terminated under
Paragraph 6(a) or clause (vii) of Paragraph 6(b), any compensation payable under
Paragraphs 5(a) and 5(b) which shall have been earned but not yet paid shall be
paid by the Corporation to Executive or Executive's estate, guardian or
custodian, as the case may be. In the case of Incentive Compensation payable
under Paragraph 5(b), such amounts shall be deemed earned each day during the
year in which Executive is employed pursuant to this Agreement and any payment
of such Incentive Compensation made after termination shall be equal to the
entire Incentive Compensation for the year times a fraction, the numerator of
which is equal to the number of days of the year in which Executive was employed
and the denominator of which is 365.
7. Disclosure of Information.
Executive agrees that Executive will not, at any time during or after the
Term of this Agreement, disclose, reproduce, assign or transfer to any person,
firm, corporation or other business entity, except as required by law, any
non-public information concerning the business, clients, affairs, business
plans, strategies, compounds, formulations, methods, devices, apparatus,
preparations, results from ongoing investigations by others, and present and
future plans of the Corporation, any subsidiary or affiliate thereof or any
company formed or funded by the Corporation ("Confidential Information") for any
reason or purpose whatsoever, without the Corporation's written consent; nor
shall Executive make use of any of such Confidential Information for Executive's
own purpose or for the benefit of any person, firm, corporation or other
business entity, except the Corporation or any subsidiary or affiliate thereof.
8. Restrictive Covenants.
(a) Executive hereby acknowledges and recognizes that during the term of
employment by the Corporation, Executive will be privy to trade secrets and
confidential proprietary information critical to the Corporation's business and
Executive further acknowledges and recognizes that the Corporation would find it
extremely difficult or impossible to replace Executive and accordingly Executive
agrees that, in consideration of the premises contained herein and, the
consideration to be received by the Executive hereunder, Executive will not,
from the date hereof through the end of the Term of this Agreement and for a one
year period thereafter, (i) directly or indirectly engage in, represent in any
way, or be connected with, any business or activity (such business or activity
being hereinafter called a "Competing Business"), in competition with the
Corporation or any Subsidiary in any location throughout the world, at the time
of Executive's termination of employment with the Corporation, whether such
engagement shall be as an officer, director, owner, employee, partner, affiliate
or other participant in any Competing Business, (ii) assist others in engaging
in any Competing Business in the manner described in the foregoing clause (i) of
this Paragraph 8(a) or (iii) induce other employees of any of the Companies to
terminate such employee's employment with any of the Companies, or engage in any
Competing Business. In the event that termination of Executive is without cause
under Paragraph 6(b), then the restrictions specified above shall be applicable
for the period of time Executive continues to receive compensation from the
Corporation pursuant to this Agreement, but in no event for less than six months
from the date of such termination without cause.
(b) Executive understands that the restrictions contained in Paragraph 8(a)
may limit Executive's ability to earn a livelihood in a business similar to the
businesses of any of the Companies, but Executive nevertheless believes that
Executive will receive sufficient consideration hereunder and as an employee of
the Corporation and as otherwise provided hereunder clearly to justify such
restrictions which, in any event (given Executive's education, skills and
ability), Executive does not believe would prevent Executive from earning a
living.
(c) Executive represents and warrants that:
(i) Executive is familiar with the covenants not to compete as
set forth in Paragraph 8(a) of this Agreement;
(ii) Executive has had the opportunity to discuss the provisions
of the covenants as set forth this Section 8 with Executive's personal
attorney and has concluded that such provisions (including, without
limitation, the right of equitable relief and the length of time provided
for herein) are fair, reasonable and just under the circumstances;
(iii) Executive is fully aware of the obligations, limitations
and liabilities included in the covenants as set forth in Paragraph 8(a) of
this Agreement;
(iv) the scope of activities covered as set forth in Paragraph
8(a) of this Agreement is substantially similar to those activities to be
performed by Executive pursuant to this Agreement;
(v) the duration of covenants as set forth in Paragraph 8(a) of
this Agreement have been agreed upon as a reasonable restriction, giving
consideration to the following factors: (A) Executive and the Corporation
reasonably anticipate that this Agreement, although terminable in
accordance with Section 6 or otherwise, may continue in effect for
sufficient duration to allow Executive to attain superior bargaining
strength and an ability for unfair competition with respect to the
customers of the Companies and (B) the duration of the covenants as set
forth in Paragraph 8(a) of this Agreement is a reasonably necessary period
to allow the Companies to restore the Companies' position of equivalent
bargaining strength and fair competition with respect to such customers;
(vi) the geographical territory covered hereby has been agreed
upon as a reasonable geographical restriction; and
(vii) the Corporation is relying upon the representations,
warranties and covenants of Executive contained in this Section 8 in
entering into this Agreement and, without such representations, warranties
and covenants, the Corporation would not enter into this Agreement.
9. Corporation's Right to Inventions and Work Product.
Executive shall promptly disclose, grant and assign to the Corporation for
the Corporation's sole use and benefit any and all inventions, improvements,
technical information and suggestions relating in any way to the business of any
of the Companies, which Executive may develop or acquire during the term of
employment with the Corporation (whether or not during normal working hours),
together with all patent applications, letters, patents, copyrights and reissues
thereof that may at any time be granted for or upon any such invention,
improvement or technical information.
In connection therewith:
(a) Executive shall without charge, but at the expense of the Corporation,
promptly at all times hereafter execute and deliver to the Corporation and/or
the Companies such applications, assignments, descriptions and other instruments
as may be necessary or proper in the opinion of the Corporation to vest title to
any such inventions, improvements, technical information, patent applications,
patents, copyrights or reissues thereof in the Corporation and/or the Companies
and to enable the Corporation and/or the Companies to obtain and maintain the
entire right and title thereto throughout the world; and
(b) Executive shall render to the Corporation and/or the Companies at the
Corporation's and/or the Companies' expense (including a reasonable payment for
the time involved in case Executive is not then in the Corporation's employ) all
such assistance as the Corporation and/or the Companies may require in the
prosecution of applications for said patents or copyrights or reissues thereof,
in the prosecution or defense of interferences which may be declared involving
any of said applications, patents or copyrights and in any litigation in which
the Corporation and/or the Companies may be involved relating to any such
patents, inventions, improvements or technical information.
10. Enforcement.
It is the desire and intent of the parties hereto that the provisions of
this Agreement shall be enforced to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, to the extent that a restriction contained in this
Agreement is more restrictive than permitted by the laws of any jurisdiction
where this Agreement may be subject to review and interpretation, the terms of
such restriction, for the purpose only of the operation of such restriction in
such jurisdiction, shall be the maximum restriction allowed by the laws of such
jurisdiction and such restriction shall be deemed to have been revised
accordingly herein.
11. Representations, Warranties, and Covenants of the Executive.
Executive hereby represents, warrants and covenants to the Corporation that
Executive has the capacity to enter into this Agreement, and the execution,
delivery and performance of this Agreement and compliance with the provisions
hereof by Executive will not conflict with or result in any breach of any of the
terms, conditions, covenants or provisions of, or constitute a default under,
any note, mortgage, agreement, contract or instrument to which Executive is a
party or which Executive may be bound or affected.
12. Remedies; Survival.
(a) Executive acknowledges and understands that the provisions of this
Agreement are of a special and unique nature, the loss of which cannot be
accurately compensated for in damages by an action at law, and that the breach
or threatened breach of the provisions of this Agreement would cause the
Corporation irreparable harm. In the event of a breach or threatened breach by
the Executive of any of the provisions of Sections 7, 8 and 9 hereof, the
Corporation shall be entitled to an injunction restraining Executive from such
breach. Nothing herein contained shall be construed as prohibiting the
Corporation from pursuing any other remedies available for any breach or
threatened breach of this Agreement.
(b) Notwithstanding anything contained in this Agreement to the contrary,
the provisions of Sections 7, 8 and 9 shall survive the expiration or other
termination of this Agreement until, by their terms, such provisions are no
longer operative.
13. Notices.
All requests, demands, notices and other communications required or
otherwise given under this Agreement shall be sufficiently given if (a)
delivered by hand against written receipt therefor, (b) forwarded by overnight
courier or (c) mailed by registered or certified mail, postage prepaid,
addressed as follows:
If to the Corporation, to: Alcohol Sensors International, Ltd.
00 Xxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Corporate Secretary;
with a copy to: Xxxxxxx & Associates, LLC
00 Xxxxxxx Xxxxxxxxx Xxxx.
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
If to Executive, to: Xxxxxx X. Xxxxxx
00 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
or, in the case of any of the parties hereto, at such other address as such
party shall have furnished in writing, in accordance with this Section 13, to
the other party hereto. Each such request, demand, notice or other communication
shall be deemed given (a) on the date of delivery by hand, (b) on the first
business day following the date of delivery to an overnight courier or (c) three
business days following mailing by registered or certified mail.
14. Indemnification.
The Corporation agrees to indemnify Executive and hold Executive harmless
against any and all losses, claims, damages, liabilities and costs (and all
actions in respect thereof and any legal or other expenses in giving testimony
or furnishing documents in response to a subpoena or otherwise), including,
without limitation, the costs of investigating, preparing or defending any such
action or claim, whether or not in connection with litigation in which Executive
is a party, as and when incurred, directly or indirectly caused by, relating to,
based upon or arising out of any work performed by Executive in connection with
this Agreement to the full extent permitted by the New York Business Corporation
Law and by the Certificate of Incorporation and Bylaws of the Corporation, as
may be amended from time to time.
The indemnification provision of this Section 14 shall be in addition to
any liability which the Corporation may otherwise have to Executive.
If any action, proceeding or investigation is commenced as to which
Executive proposes to demand such indemnification, Executive shall notify the
Corporation with reasonable promptness. Executive shall have the right to retain
counsel of Executive's own choice to represent Executive and the Corporation
shall pay all reasonable fees and expenses of such counsel; and such counsel
shall, to the fullest extent consistent with such counsel's professional
responsibilities, cooperate with the Corporation and any counsel designated by
the Corporation. The Corporation shall be liable for any settlement of any claim
against Executive made with the Corporation's written consent, which consent
shall not be unreasonably withheld, to the fullest extent permitted by the New
York Business Corporation Law and the Certificate of Incorporation and Bylaws of
the Corporation, as may be amended from time to time.
15. Prior Agreements/Oral Modification.
This Agreement supersedes all prior agreements and constitutes the entire
Agreement and understanding between parties. This Agreement may not be amended,
modified in any manner or terminated orally; and no amendment, modification,
termination or attempted waiver of any of the provisions hereof shall be binding
unless in writing and signed by the parties against whom the same is sought to
be enforced; provided, however, that Executive's compensation may be increased
at any time by the Corporation without in any way affecting any of the other
terms and conditions of this Agreement which in all other respects shall remain
in full force and effect.
16. Attorney's Fees.
In the event of any litigation between the parties to this Agreement, or
any of them, concerning this Agreement, the prevailing party shall be entitled
to recover the prevailing party's reasonable attorney's fees, including, but not
limited to, the prevailing party's reasonable attorney's fees for services
rendered on appeal, as determined by a court of competent jurisdiction.
17. Binding Agreement; Benefit.
The provisions of this Agreement will be binding upon, and will inure to
the benefit of, the respective heirs, legal representatives and successors of
the parties hereto.
18. Governing Law.
This Agreement will be governed by, and construed and enforced in
accordance with the laws of the State of New York.
19. Arbitration.
(a) Any dispute arising between the parties to this Agreement, including,
but not limited to, those pertaining to the formation, validity, interpretation,
effect or alleged breach of this Agreement ("Arbitrable Dispute") will be
submitted to arbitration in New York, New York, before an experienced employment
arbitrator and selected in accordance with the rules of the American Arbitration
Association labor tribunal. Each party shall pay the fees of their respective
attorneys, the expenses of their witnesses and any other expenses connected with
presenting their claim. Other costs of the arbitration, including the fees of
the arbitrator, cost of any record or transcript of the arbitration,
administrative fees, and other fees and costs shall be borne equally by the
parties hereto.
(b) Should any party to this Agreement hereafter institute any legal action
or administrative proceedings against another party with respect to any claim
waived by this Agreement or pursue any other Arbitrable Dispute by any method
other than said arbitration, the responding party shall be entitled to recover
from the initiating party all damages, costs, expenses and attorney's fees
incurred as a result of such action.
20. Proper Construction.
(a) The language of all parts of this Agreement shall in all cases be
construed as a whole according to its fair meaning, and not strictly for or
against any of the parties.
(b) As used in this Agreement, the term "or" shall be deemed to include the
term "and/or" and the singular or plural number shall be deemed to include the
other whenever the context so indicates or requires.
21. Waiver of Breach.
The waiver by either party of a breach of any provision of this Agreement
by the other party must be in writing and shall not operate or be construed as a
waiver of any subsequent breach by such other party.
22. Entire Agreement; Amendments.
This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements or
understandings among the parties with respect thereto. This Agreement may be
amended only by an agreement in writing signed by the parties hereto.
23. Headings.
The Section and Paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
24. Severability.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
25. Assignment.
This Agreement is personal in its nature and the parties hereto shall not,
without the consent of the other, assign or transfer this Agreement or any
rights or obligations hereunder; provided, however, that the provisions hereof
shall inure to the benefit of, and be binding upon, each successor of the
Corporation whether by merger, consolidation, transfer of all or substantially
all assets, or otherwise.
26. Counterparts.
This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
EXECUTIVE: CORPORATION:
XXXXXX X. XXXXXX ALCOHOL SENSORS INTERNATIONAL, LTD.
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Secretary
WITNESS: WITNESS:
/s/ Xxxx X. Xxxxxxx /s/ Xxxx X. Xxxxxxx
Name: Name:
