Exhibit 10.72
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of January 10,
2002, by and among STONEPATH GROUP, INC., a Delaware corporation (the
"Employer"), and XXXX XXXXX (the "Executive").
RECITALS
WHEREAS, the Employer considers it essential and in the best interests
of its stockholders to xxxxxx the employment of key management personnel and
desires to engage the services of the Executive on the terms and conditions
hereinafter set forth; and
WHEREAS, Executive desires to render services to the Employer on the
terms and conditions provided in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto, intending to be legally bound, hereby
agree as follows:
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms have
the meanings specified or referred to in this Section 1:
"Agreement" means this Employment Agreement, as amended from
time to time.
"Basic Compensation" shall include base salary, as well as any
bonuses that have been declared and are payable pursuant to Section 3.1(b) of
this Agreement.
"Board of Directors" means the board of directors of Employer.
"Change of Control" shall be deemed to occur if (A) there
occurs a sale, exchange, transfer or other disposition of 50% or more in value
of the assets of Employer to another Person or entity, except to an entity
controlled directly or indirectly by Employer; or (B) there occurs a merger,
consolidation or other reorganization of Employer in which Employer is not the
surviving entity, provided Persons who were shareholders of Employer prior to
the transaction continue to own less than 50% of the outstanding securities of
the acquiror immediately following the transaction; (C) there occurs a merger,
consolidation or other reorganization of Employer in which the Employer is the
surviving entity, provided Persons who were shareholders of Employer prior to
the transaction continue to own less than 50% of the outstanding securities of
the surviving entity following the transaction; or (D) a plan of liquidation or
dissolution of Employer other than pursuant to bankruptcy or insolvency laws is
adopted. Notwithstanding the foregoing, a "change of control" shall not be
deemed to have occurred for purposes of this Agreement (i) in the event of a
sale, exchange, transfer or other disposition of substantially all of the assets
of Employer to, or a merger, consolidation or other reorganization of Employer
and any entity in which Executive (alone or with other officers) has, directly
or indirectly, at least a 25% equity or ownership interest; or (ii) in a
transaction otherwise commonly referred to as a "management leveraged buy-out",
as a result of which Executive (alone or with other officers) has, directly or
indirectly, at least a 25% equity or ownership interest.
"Code" means the Internal Revenue Code of 1986, as amended.
"Disability" shall mean once the Executive is unable for the
"Disability Period" (as hereafter defined) to perform the essential functions of
the Executive's duties with reasonable accommodation. The disability of the
Executive will be determined by a medical doctor selected by written agreement
of the Employer and the Executive upon the request of either party by notice to
the other. If the Employer and the Executive cannot agree on the selection of a
medical doctor, each of them will select a medical doctor and the two medical
doctors will attempt to make a determination of disability. If they cannot
agree, they will select a third medical doctor who will determine whether the
Executive has a disability. The determination of the third medical doctor
selected under this provision will be binding on both parties. The Executive
must submit to a reasonable number of examinations by the medical doctor making
the determination of disability under this provision, and the Executive hereby
authorizes the disclosure and release to the Employer of such determination and
all supporting medical records. If the Executive is not legally competent, the
Executive's legal guardian or duly authorized attorney-in-fact will act in the
Executive's stead for the purposes of submitting the Executive to the
examinations, and providing the authorization of disclosure, required under this
provision.
"Disability Period" shall mean 180 consecutive days or 180
days during any twelve (12) month period; or such lesser number of days as
elapse until disability insurance benefits commence under any disability
insurance coverage furnished by Employer to Executive, if any.
"Effective Date" means January 10, 2002.
"Employment Period" means the term of the Executive's
employment under this Agreement as defined in Section 2.2.
"For Cause" shall mean: (a) any violation of a law, rule or
regulation other than minor traffic violations, which causes or is likely to
cause material damages to the Employer, including without limitation, any
violation of the Foreign Corrupt Practices Act; (b) a breach of fiduciary duty
for personal profit; (c) fraud, dishonesty or other acts of willful misconduct
in the rendering of services on behalf of the Employer or relating to the
Executive's employment; (d) willful misconduct by the Executive which would
cause the Employer to violate any state or federal law relating to sexual
harassment or age, sex or other prohibited discrimination or any violation of
written policy of the Employer or any successor entity adopted in respect to
such law; (e) failure to follow Employer work rules or the lawful instructions
(written or otherwise) of the Board of Directors of the Employer or a
responsible Executive to whom the employee directly or indirectly reports,
provided compliance with such directive was reasonably within the scope of the
Executive's duties and the Executive was given notice that his or her conduct
could give rise to termination and such conduct is not, or could not be cured,
within ten (10) days thereafter; or (f) any violation by the Executive of the
terms of this Agreement; provided, however, that in order to terminate Executive
2
For Cause, Employer must first provide Executive with thirty (30) days written
notice of the particular For Cause events alleged by Employer; however, in the
event of a For Cause event specified at sub-sections (e) and (f) above, the
thirty (30) day notice period must be accompanied with a right to cure within
such thirty (30) day period.
"Good Reason" shall mean, unless Executive shall have
consented in writing thereto, any of the following: (i) a reduction in
Executive's title, duties, responsibilities or status which are inconsistent
with Executive's position with Employer; (ii) a reduction by Employer in
Executive's base salary or material reduction in fringe benefits; or (iii) the
breach by Employer of any material agreement or obligation under this Agreement;
any of such events to be preceded by notice from Executive to Employer and a
thirty (30) day right to cure.
"Person" means any individual, corporation (including any
non-profit corporation), general or limited partnership, limited liability
company, joint venture, estate, trust, association, organization, or
governmental body.
2. EMPLOYMENT TERMS AND DUTIES
2.1 EMPLOYMENT
Commencing on the Effective Date, the Employer agrees to
employ the Executive for the term of this Agreement upon the terms and
conditions set forth in this Agreement, and the Executive agrees to commence
employment for Employer also upon the terms and conditions set forth in this
Agreement.
2.2 TERM
Subject to the provisions of Section 6, the Employment Period
for the Executive's employment under this Agreement will be three (3) years,
beginning on the Effective Date, and expiring on the earlier of January 10,
2005, or as earlier permitted under this Agreement.
2.3 DUTIES
The Executive will serve as the Chief Financial Officer of
Employer and will perform all duties required in furtherance of his position,
including without limitation, all such duties as are customarily associated with
such position or such duties as are assigned or delegated to the Executive by
the Employer's Chief Executive Officer, any other Executive officer designated
by the Chief Executive Office or the Board of Directors. The Executive agrees to
perform in good faith and to the best of his ability all services which may be
required of him hereunder and will devote his full-time efforts and business
time, skill, attention and energies as are reasonably necessary to perform his
duties and responsibilities under this Agreement and to promote the success of
the Employer's business. Executive may continue to engage in the following
activities: (a) attending board of directors' or like meetings of other
companies in which Executive or an affiliate has invested or in which Executive
has been elected to serve, and (b) managing his personal investments, provided
that such activities set forth in (a) and (b) (individually or collectively) do
not in the good faith view of Employer's Board of Director's materially
interfere or conflict with the performance of Executive's duties or
responsibilities under this Agreement.
3
The Executive shall report on a day-to-day basis to the
administrative headquarters of Employer presently located in Philadelphia,
Pennsylvania.
3. COMPENSATION
3.1 BASIC COMPENSATION
(a) Base Salary. The Executive will be paid an annual base
salary of $200,000, subject to adjustment as provided below (the "Base Salary"),
which will be payable in equal periodic installments according to the Employer's
customary payroll practices, but no less frequently than monthly. The
Executive's Base Salary will be reviewed by Employer's Board of Directors not
less frequently than annually, and may be adjusted upward or downward by
Employer, but in no event will the Base Salary be less than $200,000 per year.
(b) Bonus. Executive shall also be eligible to an annual
incentive bonus the amount of which would be determined at the discretion of the
Employer with a target of 50% of your base compensation if all target incentives
are achieved. The bonus would be based upon management's assessment of: (i) your
individual contribution to the Employer; (ii) the performance of your reporting
unit or division within the Employer; and (iii) the overall performance of the
Employer. The target incentives will be established by the Employer pursuant to
an incentive compensation plan, once adopted by Employer.
(c) Benefits.
(i) General Benefits. The Executive will, during the
Employment Period, be permitted to participate in such pension, profit sharing,
bonus (subject to the provisions of Section 3.1 (b)), life insurance,
hospitalization, major medical, and other employee benefit plans of the Employer
that may be in effect from time to time, to the extent the Executive is eligible
under the terms of those plans (collectively, the "Benefits"). The Executive
shall also be entitled to such other fringe benefits as are now or may become
available to all of Employer's other Executive officers.
(ii) Life and Disability Insurance. During the term
of this Agreement, the Employer shall pay Executive an annual amount not to
exceed $2,000 per annum(prorated for less than annual periods) to reimburse
Executive for the cost of Executive securing life or disability insurance
policies in an amount and to the extent Executive may select.
(iii) Temporary Housing Allowance. Executive will be
expected to report to the Employer's administrative headquarters, which is
presently located in Philadelphia, Pennsylvania. In recognition of the need for
Executive to relocate from his present residence, Employer agrees, for a period
of six (6) months from the Effective Date, to reimburse Executive for such
reasonable occupancy and transportation costs as are incurred by him in order to
relocate to and work out of the Employer's administrative headquarters, with the
understanding that the approximate amount of such expenses shall be discussed
with and agreed to by Employer on the Effective Date (and thereafter on a
periodic basis).
(iv) Relocation and Storage Expense. In recognition
of Executive's need to relocate from his present residence, Employer agrees to
provide Executive with a relocation and storage expense allowance of up to
$15,000.00 to cover the costs of continued storage of Executive's personal
effects for a period not to exceed six (6) months from the Effective Date and
Executive's general moving and relocation expenses (to the extent they are
incurred within one (1) year from the Effective Date).
4
(v) Expense Allowance. A yearly expense allowance of
$12,000 (paid monthly or quarterly at the discretion of Executive) will be paid
by Employer to Executive to pay for an auto allowance for the cost of
maintaining, insuring and operating one automobile for business purposes, dues,
assessments and expenses incurred by the Executive relating to membership or
participation in professional or social groups or organizations which the
Executive determines are useful or necessary for the purpose of promoting and
maintaining the business of the Company or for other travel and entertainment
expenses incurred by Executive which he believes are useful or necessary for the
purpose of promoting and maintaining the business of the Company.
3.2 OPTIONS
Employer hereby grants to Executive options to purchase up to
one hundred fifty thousand (150,000) shares of its common stock at an exercise
price per share equal to the closing price of the Employer's common stock on the
American Stock Exchange on the day prior to the Effective Date (the "Options").
The Options shall be granted under and subject to the Employer's then effective
Stock Option Plan and under the terms and conditions of the Stock Option
Agreement dated as of the Effective Date. The Options shall fully vest upon a
Change of Control.
4. EXPENSE REIMBURSEMENT
The Employer will pay reasonable expenses incurred by the Executive in
the performance of the Executive's duties pursuant to this Agreement, including
without limitation reasonable expenses incurred by the Executive in attending
conventions, other business meetings and for promotional expenses, provided that
any such activities must be related to Employer's business and all individual
expenses (or those aggregated for a single convention, seminar or other business
trip) greater than $2,000 must be approved by either Employer's Chief Executive
Officer or Employer's Compensation Committee (or if Employer has no Compensation
Committee, its Board of Directors). The Executive must file expense reports with
respect to such expenses in accordance with the Employer's policies.
5. VACATIONS AND HOLIDAYS
The Executive will be entitled to three (3) weeks paid vacation each
calendar year in accordance with the vacation policies of the Employer in effect
for its Executive officers from time to time. The Executive will also be
entitled to the paid holidays and other paid leave set forth in the Employer's
policies. Vacation days during any calendar year that are not used by the
Executive during such calendar year may be used in any subsequent calendar year;
provided, however, that no more than six (6) weeks' paid vacation may be accrued
or carried forward. Accrued but unused vacation days will be paid for by
Employer in certain instances upon the termination of this Agreement as provided
for in Section 6.2 hereafter.
5
6. TERMINATION
6.1 EVENTS OF TERMINATION
The Executive's employment pursuant to this Agreement may be
terminated by Employer on the following grounds:
(a) upon the death of the Executive;
(b) upon the disability of the Executive immediately upon
notice from either party to the other;
(c) For Cause (following the expiration of any applicable
notice period from Employer to Executive);
(d) at the discretion of Employer other than For Cause; or
(e) Other than For Cause.
The Executive may terminate his employment on the following
grounds:
(e) without Good Reason, provided that Executive gives
Employer at least thirty (30) days prior written notice of his termination of
employment; or
(f) for Good Reason (following the expiration of any
applicable notice period from Executive to Employer).
6.2 TERMINATION PAY
Effective upon the termination of this Agreement, the Employer
will be obligated to pay the Executive (or, in the event of his death, his
designated beneficiary as defined below) the compensation provided in this
Section 6.2:
(a) Termination by the Employer For Cause or Termination by
Executive Without Good Reason. If the Employer terminates this Agreement For
Cause or Executive resigns or terminates his employment for other than Good
Reason, the Executive will be entitled to receive his Basic Compensation through
the date such termination is effective.
(b) Termination upon Disability. If this Agreement is
terminated by either party as a result of the Executive's Disability, the
Employer will pay the Executive his Basic Compensation through the remainder of
the calendar quarter during which such termination is effective and for the
lesser of (i) six consecutive months thereafter, or (ii) the period until
disability insurance benefits commence under any disability insurance coverage
furnished by the Employer to the Executive.
(c) Termination upon Death. If this Agreement is terminated
because of the Executive's death, the Executive's estate will be entitled to
receive his Basic Compensation through the end of the calendar month in which
his death occurs.
6
(d) Termination by Executive For Good Reason or Termination by
Employer Without Cause. If this Agreement is terminated by Executive for Good
Reason, or if this Agreement is terminated by Employer other than For Cause,
then Employee's sole remedy shall be to receive severance under this Agreement,
pursuant to which Employer shall continue to pay to Executive his Basic
Compensation for the lesser of: (i) the remaining term under this Agreement; or
(ii) a period of one (1) year; however, in no event less than six months, (the
"Severance Period") as if Executive had continued to remain employed during the
Severance Period; provided, however, as a condition to receiving such severance
payments, Executive shall provide Employer with a general release in form and
substance satisfactory to Employer. If a termination occurs under this Section
6.2(d) prior to the one year anniversary of the Effective Date, Executive shall
be entitled to an additional relocation allowance of up to $15,000.00 to cover
the cost of relocating to another residence provided: (i) such residence will
thereafter constitute Executive's principal residence; (ii) such principal
residence is more than 75 miles from Executive's last residence while employed
by Employer; and (iii) such relocation occurs within 6 months of the date of
termination provided in this Section 6.2(d).
7. CHARACTER OF TERMINATION PAYMENTS; MITIGATION
The amounts payable to Executive upon any termination of this Agreement
shall be considered severance pay in consideration of past services rendered on
behalf of the Employer and his continued service from the date hereof to the
date he becomes entitled to such payments. Executive shall have no duty to
mitigate his damages by seeking other employment and, should Executive actually
receive compensation from any such other employment, the payments required
hereunder shall not be reduced or offset by any such other compensation.
8. CONFIDENTIALITY AND RELATED MATTERS.
8.1 NON-DISCLOSURE COVENANT
Employer and the Executive acknowledge that the services to be
performed by the Executive under this Agreement are unique and valuable and
that, as a result of the Executive's employment, the Executive will be in a
relationship of confidence and trust with Employer and will come into possession
of "Confidential Information" (i) owned or controlled by Employer and its
subsidiaries and affiliates; (ii) in the possession of Employer and its
subsidiaries and affiliates and belonging to third parties; or (iii) conceived,
originated, discovered or developed, in whole or in part, by the Executive
during the term of this Agreement and relating to his duties for the Employer
under this Agreement. As used herein "Confidential Information" means trade
secrets and other confidential or proprietary business, technical, personnel or
financial information of Employer, whether or not the Executive's work product,
in written, graphic, oral or other tangible or intangible forms, including but
not limited to specifications, samples, records, data, computer programs,
drawings, diagrams, models, consumer names, ID's or e-mail addresses, business
or marketing plans, studies, analyses, projections and reports, communications
by or to attorneys (including attorney-client privileged communications), memos
and other materials prepared by attorneys or under their direction (including
attorney work product), and software systems and processes that are not readily
available to the public, even it is not specifically marked as a trade secret or
confidential, unless Employer advises the Executive otherwise in writing or
unless the information has been shared by Employer with entities not bound by
non-disclosure agreements. In consideration of the compensation and benefits to
7
be paid or provided to the Executive by the Employer under this Agreement, the
Executive agrees not to directly or indirectly use or disclose to anyone, either
during the Employment Period or after the termination of this Agreement, except
in the performance of his duties of his employment with Employer or with
Employer's prior written consent, any Confidential Information of Employer. This
non-disclosure covenant does not apply to information that is disclosed or
becomes public through another source that is not bound by a confidentiality
agreement with Employer; which Executive is required to disclose pursuant to
court order, subpoena or applicable law (provided that Executive will use
reasonable efforts to provide Employer with prompt notice of any such requests
or requirement so that Employer may seek an appropriate protective order); or
which is disclosed in any proceeding to enforce or interpret this Agreement. The
Executive agrees that in the event of the termination of the Executive's
employment for any reason, the Executive will deliver to Employer, upon request,
all property belonging to Employer, including all documents and materials of any
nature pertaining to the Executive's work with Employer and will not take with
him any documents or materials of any description, or any reproduction thereof
of any description, containing or pertaining to any Confidential Information.
8.2 WORK MADE FOR HIRE
Executive recognizes and understands that Executive's duties
at the Employer may include the preparation of materials, including without
limitation written or graphic materials, and that any such materials conceived
or written by Executive shall be done as "work made for hire" as defined and
used in the Copyright Act of 1976, 17 U.S.C. xx.xx. 1 et seq. In the event of
publication of such materials, Executive understands that since the work is a
"work made for hire", the Employer will solely retain and own all rights in said
materials, including right of copyright.
8.3 DISCLOSURE OF WORKS AND INVENTIONS/ASSIGNMENT OF PATENTS
In consideration of the promises set forth herein, Executive
agrees to disclose promptly to the Employer, or to such person whom the Employer
may expressly designate for this specific purpose (its "Designee"), any and all
works, inventions, discoveries and improvements authored, conceived or made by
Executive during the period of employment and related to the business or
activities of the Employer, and Executive hereby assigns and agrees to assign
all of Executive's interest in the foregoing to the Employer or to its Designee.
Executive agrees that, whenever he is requested to do so by the Employer,
Executive shall execute any and all applications, assignments or other
instruments which the Company shall deem necessary to apply for and obtain
Letters Patent or Copyrights of the United States or any foreign country or to
otherwise protect the Company's interest therein. Such obligations shall
continue beyond the termination or nonrenewal of Executive's employment with
respect to any works, inventions, discoveries and/or improvements that are
authored, conceived of, or made by Executive during the period of Executive's
employment, and shall be binding upon Executive's successors, assigns,
executors, heirs, administrators or other legal representatives.
8
9. NON-COMPETITION AND NON-SOLICITATION MATTERS
9.1 NON-COMPETITION
During the term of this Agreement the Executive agrees that he
shall not work for or be interested in any business which provides services or
products which are directly competitive with "primary" services or products
offered by the Employer or a subsidiary or affiliate of Employer at any time
during his term of employment or at the Executive's termination date (the
"Non-Compete Period"). In the event the Executive is terminated For Cause or
Executive terminates for other than Good Reason, the Non-Compete Period shall be
extended until the earlier of (i) one year; or (ii) the then scheduled
expiration of the term of the Agreement. In the event the Executive is
terminated in a manner in which he is paid severance, his Basic Compensation is
continued, or he is paid a lump-sum as though his employment had continued, the
Non-Compete Period shall be extended through the period of such severance or
compensation continuation. For the purpose of this Agreement, a product or
service shall be deemed "primary" only if such service or product constitutes a
primary component of the core business of Employer on Executive's termination
date. For the further purposes of this Agreement, the term "work for or be
interested in any business" means that the Executive is a stockholder, director,
officer, employee, partner, individual proprietor, lender or consultant with
that business, but not if (i) his interest is limited solely to the passive
ownership of five percent (5%) or less of any class of the equity or debt
securities of a corporation whose shares are listed for trading on a national
securities exchange or traded in the over-the-counter market. In the event that
any part of this Section 9 is adjudged invalid or unenforceable by any court of
record, board of arbitration or judicial or quasi judicial entity having
jurisdiction thereof by reason of length of time, geographical coverage,
activities covered, or for any other reason, then the invalid or unenforceable
provisions of this covenant shall be deemed reformed and amended to the maximum
extent permissible under applicable law and shall be enforced and enforceable as
so amended in accordance with the intention of the parties as expressed herein.
9.2 NON-SOLICITATION
During the Non-Compete Period, the Executive also agrees that
he will not directly or indirectly: (i) solicit the trade of, or trade with, any
past, present or prospective customer of the Employer for any business purpose
that directly or indirectly competes with the business of Employer or a
subsidiary or affiliate of Employer; or (ii) solicit or induce, or attempt to
solicit or induce, any employee of Employer to leave Employer for any reason
whatsoever, or assist or participate in the hiring of any employee of Employer
to work for another entity.
10. REPRESENTATIONS OF EXECUTIVE
As a material inducement to Employer to execute this Agreement
and consummate the transactions contemplated thereby, the Executive hereby makes
the following representations to Employer, each of which are true and correct in
all material respects as of the date hereof.
9
10.1 QUESTIONNAIRE
On or before the date hereof Executive has completed and
returned to Employer a Directors and Officers Questionnaire (the
"Questionnaire") which is true and correct in all material respects.
10.2 NO PRIOR AGREEMENTS
Executive represents and warrants that Executive is not a
party to or otherwise subject to or bound by the terms of any contract,
agreement or understanding which in any manner would limit or otherwise affect
Executive's ability to perform his obligations hereunder, including without
limitation any contract, agreement or understanding containing terms and
provisions similar in any manner to those contained in Sections 8 and 9 of this
Agreement. Executive further represents and warrants that his employment with
the Employer will not under any circumstances require him to disclose or use any
confidential information belonging to prior Employers or other persons or
entities, or to engage in any conduct which may potentially interfere with the
contractual, statutory or common-law rights of such other Employers, persons or
entities. In the event that Executive knows or learns of any facts whatsoever
which suggest that such interference might arguably occur as the result of any
proposed actions by either Executive or the Employer, Executive expressly
promises that he will immediately bring such facts to the Employer's attention.
10.3 REVIEW BY COUNSEL
Executive expressly acknowledges and represents that Executive
has been given a full and fair opportunity to review this Agreement with an
attorney of Executive's choice, and that Executive has satisfied himself, with
or without consulting with counsel, that the terms and provisions of this
Agreement, specifically including, but not limited to, the restrictive covenant
and related provisions of Section 9 hereof, are reasonable and enforceable.
10.4 NO CONFLICTS OF INTEREST
Executive covenants that, as of the date hereof, he is not
involved in any venture or activity that could compete with Employer or which
could potentially interfere with his ability to perform under this Agreement.
During the Term, he will disclose to the Company, in writing, any and all
interests he may have, whether for profit or compensation or not, in any venture
or activity which could potentially interfere with his ability to perform under
this Agreement or create a conflict of interest for him with the Company. For
purposes of this Section 10.4 only, "conflict of interest" shall mean ownership
of greater than one percent (1%) of, or $25,000 worth of equity in, another
company which conducts business similar to that undertaken by the Employer.
10.5 EXECUTIVE'S ABILITY
Executive represents that Executive's experience and
capabilities, and the limited provisions of Section 9, are such that he will not
be prevented from earning his livelihood in businesses similar to that of
Employer. Executive acknowledges that there are a significant number of
businesses for which his qualifications and experience would render him
qualified for employment that do not constitute a competing businesses such that
his ability to become employed after the termination or nonrenewal of this
Agreement would not be impaired.
10
11. GENERAL PROVISIONS
11.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY
The Executive acknowledges that the injury that would be
suffered by the Employer as a result of a breach of the provisions of any
provision of Sections 8 and 9 of this Agreement would be irreparable and that an
award of monetary damages to the Employer for such a breach would be an
inadequate remedy. Consequently Employer will have the right, in addition to any
other rights it may have, to obtain injunctive relief to restrain any breach or
threatened breach or otherwise to specifically enforce any provisions of
Sections 8 and 9 of this Agreement, and the Employer will not be obligated to
post bond or other security in seeking such relief.
11.2 WAIVER
The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by either
party in exercising any right, power, or privilege under this Agreement will
operate as a waiver of such right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege will preclude any other or
further exercise of such right, power, or privilege or the exercise of any other
right, power, or privilege.
11.3 TOLLING PERIOD
The non-competition, non-disclosure and non-solicitation
obligations contained in Sections 8 and 9 of this Agreement shall be extended by
the length of time during which Executive shall have been in breach of any of
the provisions of such Sections 8 and 9, regardless of whether the Employer knew
or should have known of such breach.
11.4 EMPLOYER VIOLATION NOT A DEFENSE
In an action by the Employer to enforce any provision of this
Agreement, any claims asserted by Executive against the Employer shall not
constitute a defense to the Employer's action.
11.5 INDEMNIFICATION
Employer shall indemnify and defend Executive and his heirs,
executors and administrators against any costs or expense (including reasonable
attorneys' fees and amounts paid in settlement, if such settlement is approved
by the Employer), fine, penalty, judgment and liability reasonable incurred by
or imposed upon Executive in connection with any action, suit or proceeding,
civil or criminal, to which Executive may be made a party or with which
Executive shall be threatened, by reason of Executive's being or having been an
11
officer or director, unless with respect to such matter Executive shall have
been adjudicated in any proceeding not to have acted in good faith or in the
reasonable belief that the action was in the best interests of the Employer, or
unless such indemnification is precluded by law, public policy, or in the
judgment of the Employer's Board of Directors, such indemnification is being
sought as a result of actions of Executive which were either: (i) grossly
negligent; (ii) reflective of Executive misconduct; (iii) in violation of rules,
regulations or laws applicable to the Employer; or (iv) in disregard of Employer
policies.
11.6 NOTICES
All notices, consents, waivers, and other communications under
this Agreement must be in writing and will be deemed to have been duly given
when (a) delivered by hand, (b) sent by facsimile (with written confirmation of
receipt), provided that a copy is mailed by registered mail, return receipt
requested, or (c) when received by the addressee, if sent by a nationally
recognized overnight delivery service (receipt requested), in each case to the
appropriate addresses and facsimile numbers set forth below (or to such other
addresses and facsimile numbers as a party may designate by notice to the other
parties):
If to Employer: Stonepath Group, Inc.
Xxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attn: General Counsel
If to Executive: Xx. Xxxx Xxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
11.7 ENTIRE AGREEMENT; AMENDMENTS
This Agreement and the documents referenced herein, contain
the entire agreement between the parties with respect to the subject matter
hereof and supersede all prior agreements and understandings, oral or written,
between the parties hereto with respect to the subject matter hereof. This
Agreement may not be amended orally, but only by an agreement in writing signed
by the parties hereto.
11.8 GOVERNING LAW
This Agreement will be governed by the laws of the State of
Delaware without regard to conflicts of laws principles.
11.9 ARBITRATION, OTHER DISPUTES.
In the event of any dispute or controversy arising under or in
connection with this Agreement, the parties shall first promptly try in good
faith to settle such dispute or controversy by mediation under the applicable
rules of the American Arbitration Association before resorting to arbitration.
In the event such dispute or controversy remains unresolved in whole or in part
for a period of thirty (30) days after it arises, the parties will settle any
12
remaining dispute or controversy exclusively by arbitration in the city in which
Employer has its principal Executive offices in accordance with the commercial
arbitration rules of the American Arbitration Association then in effect.
Judgment may be entered on the arbitrator's award in any court having
jurisdiction. All administration fees and arbitration fees shall be paid solely
by Employer. Notwithstanding the above, Employer shall be entitled to seek a
restraining order or injunction in any court of competent jurisdiction to
prevent any continuation of any violation of section 8 or 9 hereof. The
prevailing party may recover attorneys' fees in any dispute or controversy
arising under or in connection with this Agreement
11.10 ASSIGNABILITY, BINDING NATURE
This Agreement shall be binding upon and inure to the benefit
of the parties and their respective successors, heirs (in the case of the
Executive) and assigns. No rights or obligations of the Executive under this
Agreement may be assigned or transferred by the Executive other than his rights
to compensation and benefits, which may be transferred only by will or operation
of law.
11.11 SURVIVAL
The respective rights and obligations of the parties hereunder
shall survive any termination of the Executive's employment to the extent
necessary to the intended preservation of such rights and obligations.
11.12 SECTION HEADINGS, CONSTRUCTION
The headings of Sections in this Agreement are provided for
convenience only and will not affect its construction or interpretation. All
references to "Section" or "Sections" refer to the corresponding Section or
Sections of this Agreement unless otherwise specified. All words used in this
Agreement will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms.
11.13 SEVERABILITY
If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
11.14 COUNTERPARTS
This Agreement may be executed in one or more counterparts,
each of which will be deemed to be an original copy of this Agreement and all of
which, when taken together, will be deemed to constitute one and the same
agreement. This Agreement (and all other agreements, documents, instruments and
certificates executed and/or delivered in connection herewith) may be executed
by facsimile signatures, each of which shall be deemed an original copy of this
Agreement (or other such agreement, document, instrument and certificate).
13
IMPORTANT NOTICE: THIS AGREEMENT RESTRICTS EXECUTIVE'S RIGHTS TO OBTAIN OTHER
EMPLOYMENT FOLLOWING HIS EMPLOYMENT WITH THE EMPLOYER. BY SIGNING IT, EXECUTIVE
ACKNOWLEDGES THIS FACT, AND FURTHER ACKNOWLEDGES THAT HE HAS BEEN ADVISED BY THE
EMPLOYER TO READ THE AGREEMENT CAREFULLY, AND/OR TO CONSULT WITH COUNSEL OF HIS
CHOICE CONCERNING THE LEGAL EFFECTS OF SIGNING THE AGREEMENT, PRIOR TO SIGNING
IT.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
WITNESS: EMPLOYER:
STONEPATH GROUP INC.
/s/ Xxxxxx Xxxxxxxxx
--------------------------------
Signature
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Xxxxxx Xxxxxxxxx Authorized Executive Officer
--------------------------------
Print Name
Xxx Xxxx Xxxxxx Xxxxx, Xxxxx 000
--------------------------------
Address
Xxxxxxxxxxxx, XX 00000
--------------------------------
Address
EMPLOYEE:
/s/ Xxxx Xxxxx
---------------------------------
Xxxx Xxxxx
