EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of the 6th
day of June, 1997, by and between Xxxxxxx X. Xxxxxxx ("Xxxxxxx") and X. X.
Xxxxxxx & Associates, Inc., an Illinois corporation ("Company"), a wholly-owned
subsidiary of Dauphin Technology, Inc.
RECITALS OF THE PARTIES
A. Company is engaged in the business of providing engineering, development
and contract manufacturing services to its clients within the electronics
industry (the "Business") from its offices located in leased premises at 0000
Xxxxx Xxxxx 00, XxXxxxx, Xxxxxxxx (the "Premises").
X. Xxxxxxx Technology, Inc., an Illinois corporation ("Dauphin"), is engaged
business of designing, developing, manufacturing and marketing leading
technology equipment including, but not limited to, mobile computers and
industrial computer products.
X. Xxxxxxx, together with Xxxxxxxxx Xxxxxxxxx and Xxxxxx Kick ("Minor
Shareholders"), as owners of all of the issued and outstanding shares of voting
common stock in Company ("Shares"), entered into a certain Stock Exchange
Agreement dated June 6, 1997 ("Stock Exchange Agreement") relating to an
exchange of the Shares solely for and in consideration of shares of voting
common stock in Dauphin, in accordance with the terms and conditions of the tax-
free reorganization provisions of Section 368(a) (1) (B) of the Internal Revenue
Code of 1986, as amended.
D. Company desires to retain Xxxxxxx, and Xxxxxxx desires to be retained by
Company, to serve as president of Company pursuant to terms and conditions of
this agreement and in furtherance of the terms and conditions of the Stock
Exchange Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties and agreements contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Retention. Company agrees that during the Term (as here inafter defined) of
this Agreement, Company shall employ Xxxxxxx as President of Company to perform
such duties and exercise such authority as the Board of Directors of Company
("the Board") or its designees may from time to time assign including, but not
limited to, those services set forth in Exhibit X. Xxxxxxx accepts such
employment and agrees that during the Term of this Agreement:
(a) he will perform such services in the foregoing capacity; and
(b) he will devote his full time and best efforts and abilities to the
affairs of Company and to the performance of his duties hereunder; and
(c) he will neither accept any other employment nor engage in other
activities which interfere with the proper discharge of his duties
hereunder.
2. Compensation. As compensation for the services to be performed by Xxxxxxx
hereunder, Company agrees to pay Xxxxxxx, and Xxxxxxx agrees to accept, the
following compensation:
2.1 Base Compensation. Xxxxxxx shall receive base compensation ("Base
Compensation") in an amount equal to Seventy Thousand and No/100 Dollars
($70,000.00) per year, payable in arrears in bi-monthly installments on
the fifteenth and last day of each month, in accordance with Company
payroll procedures applicable to all Company employees. Such Base
Compensation shall be subject to annual review by the Board.
2.2 Bonus Compensation. In addition to the Base Compensation, Xxxxxxx shall
be eligible to receive annual bonus compensation ("Bonus Compensation")
based in part upon reasonable increases in Company's revenues and profits
and such other reasonable criteria and the achievement of such reasonable
objectives as the Board may from time to time establish. Such Bonus
Compensation may be payable at such times during the year and in such
amounts as the Board may determine appropriate. Any Bonus Compensation
granted by the Board may be paid in cash or in registered common stock as
the Board determines in its sole discretion.
2.3 Reimbursement for Out-of-Pocket Expenses. In addition to the Base and
Bonus Compensation, Xxxxxxx shall be entitled to reimbursement for
reasonable out-of-pocket expenses actually incurred by him on behalf of
Company for the following:
(a) Automobile expenses and club expenses. Xxxxxxx shall not incur
aggregate monthly expenses greater than Six Hundred and No/100
Dollars. Twelve months from the effective date hereof the Board, at
its sole discretion, may, but are not required to, elect to increase
the Out-of-Pocket Expense amounts hereof.
(b) Travel and Entertainment. Reasonable out-of-pocket expenses with
proper documentation.
2.4 Vacation Benefits. In addition to any other Compensation payable under
Sections 2.1 through 2.3, Xxxxxxx shall be entitled to two weeks of paid
vacation during the first year of service under this Agreement, and three
weeks of paid vacation during each subsequent year of service hereunder.
2.5 Other Compensation and Benefits. In addition to any other Compensation
payable under Sections 2.1 through 2.4, Xxxxxxx shall be eligible to
participate in any profit sharing, pension, retirement, medical or
disability insurance or other plan maintained from time to time by
Company for the benefit of employees of Company including, but not
limited to, split dollar insurance coverage on terms and conditions
heretofore maintained by Company on Xxxxxxx'x behalf
2.6 Stock Options. In addition to any other Compensation payable under
Sections 2.1 through 2.5, Xxxxxxx is hereby granted options to purchase
50,000 shares per year of the registered common stock of Dauphin
("Dauphin Shares") during the term of this agreement, on the following
terms:
(a) Purchase Price. The purchase price payable for each Dauphin Shares
upon exercise of each option shall be $1.00 per Dauphin Shares below
the market value on the date immediately preceding the date of
exercise, "market value" being represented by the mean between the
highest and lowest price per Dauphin Shares for daily transactions in
Dauphin's stock on the OTC Bulletin Board on said date.
(b) Method of Exercising Options. Options may be exercised, at any time or
from time to time, by giving to Dauphin notice in writing and stating
the whole number of Dauphin Shares, not to exceed 12,500 during any
calendar quarter during the term of this Agreement, for which options
are being exercised. Within 10 days after the receipt by it of notice
of exercise of such options, Dauphin shall cause certificates for the
number of Dauphin Shares with respect to which such options are
exercised to be issued in Xxxxxxx'x name and to be delivered to
Xxxxxxx. Payment of the purchase price for the Dauphin Shares with
respect to which such options are exercised shall be made to Dauphin
upon the delivery of such Dauphin Shares, provided that if the market
value as of any option exercise date is greater than $1.00 per Dauphin
Share, any amount payable by Xxxxxxx and attributable to market value
in excess of $1.00 may be paid pursuant to a non-interest bearing
promissory note payable in full on or before the date of any
subsequent option exercise, and, in any event, on or before the first
anniversary of exercise and, provided further, that to the extent the
market value as of any option exercise date is less than $1.00 per
Dauphin Share, Xxxxxxx shall be entitled to receive additional Dauphin
Shares in such an amount, that the total number of Dauphin Shares
issued upon the exercise of the option, multiplied by the market value
(using the same formula applied to 2.6(a) above), equals $12,500. At
Xxxxxxx'x discretion, rather than accept additional Dauphin Shares in
such amount, to equal $12,500, he may elect to receive the difference
between market value and $1.00 per Dauphin Share in cash as cash
compensation, subject to payroll and other tax withholdings by
Company. At no time thereof, shall the total quarterly exercise of
the options (excluding any cash amount payable to Dauphin for non-
interest bearing promissory note as above) and cash compensation be
more than $12,500 under this Section.
(c) Condition of Options. The options granted hereunder are subject to the
following additional conditions: (1) no option herein granted to
Xxxxxxx shall be transferable and each option shall be exercisable,
during his lifetime, only by Xxxxxxx; (2) in the event of Xxxxxxx'x
death, or termination of this Agreement, all unexercised options shall
terminate, unless that in the event of death, any unexercised options
then remaining may be exercised by Xxxxxxx'x executor, administrator
or heirs within ninety (90) days of Xxxxxxx'x death and pursuant to
the terms and conditions set forth herein; and (3) all Shares received
by Xxxxxxx as a result of the exercise of any option granted hereunder
shall be subject to transfer limitations set forth in the Stock
Exchange Agreement of even date by and between Company, Xxxxxxx and
Minority Shareholders identified therein.
3. Term. The term ("Term") of this Agreement shall commence on the date
hereof and shall continue for a period of thirty-six (36) months, provided,
however, that the Term of this Agreement shall, in any event, terminate on
such earlier date on which any of the following events may occur:
(a) the death of Xxxxxxx;
(b) the termination of Xxxxxxx'x employment by Company by reason of the
Complete Disability of Xxxxxxx, as herein defined, upon thirty (30)
days written notice given by Company as provided in Section 6.4 below;
(c) the termination of Xxxxxxx'x employment with Company for Cause, as
hereinafter defined upon immediate written notice given by Company as
provided in Section 6.4 below; or
(d) the termination of Xxxxxxx'x employment with Company by Xxxxxxx due to
a material breach by Company of its obligations hereunder, upon written
notice given by Xxxxxxx as provided in Section 6.4 below; or
(e) Xxxxxxx'x default under any term or condition contained in the Stock
Exchange Agreement as hereinafter defined, upon written notice given by
Company as provided in Section 6.4 below, if not cured within thirty
(30) days following such notice; or
(f) At any time upon forty-five (45) days prior written notice by the Board
to Xxxxxxx given as provided in Section 6.4; or
(g) At any time upon forty-five (45) days prior written notice by Xxxxxxx
to the Board given as provided in Section 6.4; or
(h) The termination of Xxxxxxx'x employment with Company by Xxxxxxx due to
the imposition of a requirement, without Xxxxxxx'x consent, that
Xxxxxxx be based anywhere other than the Northwest Chicagoland Suburban
area, except for required travel to Company's business; or
(i) The termination of Xxxxxxx'x employment with Company by Xxxxxxx due to
the removal of Xxxxxxx from, or a failure to appoint or reappoint
Xxxxxxx to, any of his offices or the assignment of Xxxxxxx to any
duties inconsistent with Xxxxxxx'x status as material alteration in the
nature or status of Xxxxxxx'x responsibilities or conditions of
employment from those in effect prior to the date of this Agreement,
except as contemplated by this Agreement
3.1 Termination Without Cause. In the event of termination of this Agreement
upon occurrence of any event identified in Section 3(a), 3(b), 3(d),
3(f), 3(h), or 3(i) Company shall pay Xxxxxxx, as xxxxxxxxx pay and in
full and complete satisfaction of any and all amounts under this
Agreement, an amount equal to the sum of (i) all Base Compensation for a
period of two (2) months from the date of termination; (ii) all vacation
pay which is accrued as of the date of termination; (iii) all business
expenses incurred by Xxxxxxx in connection with his duties hereunder
which are supported by documentation and are unpaid at the date of
termination; and (iv) all compensation and benefits due to Xxxxxxx at the
date of termination under this or any agreement or plans, including the
Bonus Compensation for the quarter in which the termination occurred,
shall be due and payable. In addition to the severance pay described
above, all shares held in escrow on Xxxxxxx'x behalf, under the Escrow
Agreement, as defined in the Stock Exchange Agreement, shall be released
to Xxxxxxx on the effective date of termination.
3.2 Termination With Cause. In the event of termination of this Agreement
upon occurrence of any event identified in Section 3(c), 3(e), or 3(g),
Company shall pay Xxxxxxx in full and complete satisfaction of any and
all amounts under this Agreement, an amount equal to the sum of (i) all
accrued salary earned at the date of termination; (ii) all vacation pay
which is accrued as of the date of termination; (iii) all business
expenses incurred by Xxxxxxx in connection with his duties hereunder
which are supported by documentation and are unpaid at the date of
termination; and (iv) all compensation and benefits due to Xxxxxxx at the
date of termination under any agreement or plans, including the Bonus
Compensation on a prorated basis, through the date of termination. The
amount of Bonus Compensation which Xxxxxxx shall be entitled to receive,
will be calculated on a prorated basis of the percentage of the quarter
which has been completed as of the date of termination; and (v) all
Dauphin shares held in escrow on Xxxxxxx'x behalf, under the Escrow
Agreement, as defined in the Stock Exchange Agreement, shall be released
to Xxxxxxx on a prorated basis on the effective date of termination. The
amount of escrowed Shares which Xxxxxxx shall be entitled to receive,
will be calculated on a prorated basis of the percentage of the quarter
which has been completed as of the date of termination. All remaining
Dauphin Shares held by escrow agent on behalf of Xxxxxxx shall be
released to Dauphin on the effective date of termination.
4. Complete Disability and Cause. As used herein the terms "Complete
Disability" and "Cause" shall mean the following:
4.1 Complete Disability. The term "Complete Disability" shall mean the
inability of Xxxxxxx, due to illness, accident or any other physical or
mental incapacity, to perform his duties hereunder during the Term hereof
for a period of three (3) consecutive months.
4.2 Cause. The term "Cause" shall mean the following:
(a) Xxxxxxx'x theft or embezzlement of money or property of Company.
Notwithstanding the foregoing, theft or embezzlement of money or
property constituting such a material default shall not be deemed to
constitute Cause if it is of such a nature that all detriment otherwise
resulting to Company therefrom can be cured and eliminated by
appropriate action, and Xxxxxxx causes such action to be taken within
thirty (30) days following written notice from Company with respect
thereto.
(b) Xxxxxxx'x conviction of a crime, the commission of which shall have
resulted in material injury to the property or operations of Company;
(c) any intentional and malicious harm caused to Company. Notwithstanding
the foregoing, any intentional and malicious harm constituting such a
material default shall not be deemed to constitute Cause if it is of
such a nature that all detriment otherwise resulting to Company
therefrom can be cured and eliminated by appropriate action, and
Xxxxxxx causes such action to be taken within thirty (30) days
following written notice from Company with respect thereto;
(d) a material default by Xxxxxxx in the performance or observance of any
promise or understanding of Xxxxxxx under this Agreement including, but
not limited to, refusal or failure to comply with any Company policy or
direct order of the Board of Directors. Notwithstanding the foregoing,
an act or omission constituting such a material default shall not be
deemed to constitute Cause if it is of such a nature that all detriment
otherwise resulting to Company therefrom can be cured and eliminated by
appropriate action, and Xxxxxxx causes such action to be taken within
thirty (30) days following written notice from Company with respect
thereto.
5. Confidentiality and Noncompetition Covenants.
5.1 Confidentiality. (a) As used herein, the term "Confidential Information"
shall mean any and all information, whether written or oral, and which is
not readily available in the public domain, including, but not limited to,
all data, compilations, programs, devices, strategies or methods
concerning or related to (i) Company's financial condition, results of
operations, and amounts of compensation paid to officers and employees;
(ii) the terms and conditions (including prices) of sales and offers of
sales of products and services of Company, and the current status of
Company's relationship with any customer or supplier; (iii) the terms,
conditions and current status of Company's agreements and relationship
with any customer of Company; (iv) the identities and business preferences
of Company's actual and prospective customers and suppliers or any
employee or agent thereof with whom Company communicates; (v) the trade
secrets, market techniques, skills, ideas and strategic plans possessed,
developed, accumulated or acquired by Company; (vi) any communications
between Company, its officers, directors, shareholders or employees, and
any attorney retained by Company for any purpose, or any person retained
or employed by such attorney for the purpose of assisting such attorney in
his or representation of Company; (vii) the terms and conditions of this
Agreement; and (viii) any other information whether written or oral, and
which is not readily available in the public domain, (a) by which Company
derives actual or potential economic value from such information whether
written or oral, and which is not readily available in the public domain,
or (b) which gives Company an opportunity to obtain an advantage over its
competitors who do not know or use the same.
(b) Xxxxxxx acknowledges and agrees that Company is engaged in a highly
competitive business and has expended, or will expend, significant sums of
money, and has invested, or will invest, a substantial amount of time to
develop and use, and maintain the secrecy of; its Confidential
Information. Company has thus obtained, or will obtain, a valuable
economic asset which has enabled, or will enable, it to develop an
extensive reputation and to establish long4erm business relationships with
its customers. If such Confidential Information were disclosed to another
person or entity or used for the benefit of anyone other than Company,
Company may suffer irreparable harm, loss and damage. Accordingly, Xxxxxxx
convents and agrees that, unless the Confidential Information becomes
publicly known through legitimate origins not involving an improper act or
omission by Xxxxxxx, and excluding such use by Xxxxxxx in the performance
of his duties hereunder in the ordinary cause of business:
(i) the Confidential Information is, and at all times hereafter shall
remain, the sole property of Company;
(ii) Xxxxxxx shall use his reasonable best efforts and reasonable diligence
to guard and protect the Confidential Information from disclosure to
any competitor or customer of Company or any other person, firm,
corporation, or other entity;
(iii)unless Company gives Xxxxxxx prior express written permission, during
his employment and thereafter, Xxxxxxx shall not use for his own
benefit, or divulge to any competitor or customer or any other person,
firm, corporation, or other entity, any of the Confidential Information
which Xxxxxxx may obtain, learn about, develop, or be entrusted with as
a result of Xxxxxxx'x employment by Company under this Agreement or
unless Xxxxxxx shall involuntarily be required to do so by a court
having competent jurisdiction, by any governmental agency having
supervisory authority over the Business or by any administrative or
legislative body with purported or apparent jurisdiction to order
Xxxxxxx to divulge, disclose or make accessible such confidential
Information after notice to the Company.
(c) Xxxxxxx also acknowledges and agrees that all documentary and tangible,
Confidential Information including, without limitation, such Confidential
Information as Xxxxxxx has committed to memory, is or has heretofore been
supplied or made available by Company to Xxxxxxx solely to assist him in
performing his services as President of Company. Xxxxxxx further agrees
that after his employment with Company terminates for any reason:
(i) he shall not remove from Company property, and shall immediately
return to Company, all documentary or tangible Confidential
Information in his possession, custody, or control including, but not
limited to, computer or other electronic tapes, disks or media, and
not make or keep any copies, notes, abstracts, summaries, or other
record of any type of Confidential Information; and
(ii) he shall immediately return to Company any and all other Company
property in his possession, custody or control including, but not
limited to, any and all keys, security cards, passes, credit cards,
and marketing literature.
5.2 Non-Competition. Xxxxxxx hereby agrees, if his employment is terminated
under section 3.2 of this Agreement, he will not, during his employment
hereunder or at any time prior to the expiration of three (3) years
following the date he shall cease to be employed by Company, without the
consent in writing of Company: (a) engage in or become directly or
indirectly interested in any proprietorship, partnership, trust or
corporation (whether as owner, partner, trustee, beneficiary, stockholder
(except as listed on any public exchange), officer, director, employee,
consultant lessor, lessee or otherwise) which shall engage in the
Business within a radius of one hundred (100) miles of the Premises; and
(b) directly or indirectly, or by action in concert with others, induce
or influence, or seek to induce or influence, any person who is engaged
by Company as an employee, agent, independent contractor or otherwise, or
who has any other business relationship with Company, as a supplier,
customer, or otherwise, to terminate his/her/its employment, engagement
or business relationship, nor shall Xxxxxxx directly or indirectly,
employ or engage or solicit for employment or engagement, or advise or
recommend to any other person or entity that such person or entity employ
or engage or solicit for employment or engagement, any person or entity
employed or engaged by Company.
5.3 Remedies. Each party acknowledges and agrees that the Business is highly
competitive, and that violation of any of the covenants provided for in
Sections 5.1 and 5.2 of this Agreement may cause immediate, immeasurable
and irreparable harm, loss and damage to the other party not adequately
compensable by a monetary award. Accordingly, each party agrees, without
limiting any of the other remedies available to the other party, that any
violation of said covenants or any of them, may be enjoined or restrained
by any court of competent jurisdiction, and that any temporary
restraining order or emergency, preliminary or final injunctions may be
issued by any court of competent jurisdiction, without notice and without
bond. In the event any proceedings are commenced by either party against
the other for any actual or threatened violation of any of said
covenants, the prevailing party shall be entitled to recover from the
other party all costs and expenses of any kind, including reasonable
attorneys' fees, which the prevailing party may have incurred in
connection with such proceedings.
5.4 Enforcement. It is the desire of the parties that the provisions of
Sections 5.1, 5.2 and 5.3 be enforced to the fullest extent permissible
under the laws and public policies in each jurisdiction in which
enforcement may be sought. Accordingly, without limiting the general
applicability of Section 6.4 hereof; if any particular portion of
Sections 5.1, 5.2 or 5.3 shall be adjudicated as invalid or
unenforceable, or if the application thereof to any party or circumstance
shall be adjudicated to be prohibited by or invalid under such applicable
law, such Sections shall be deemed amended to delete therefrom such
portion so adjudicated, said deletion to apply only with respect to the
operation of said Sections 5.1, 5.2 and 5.3 in the particular
jurisdiction so adjudicating on the parties and under the circumstances
as to which so adjudicated, and such Sections shall only be amended to
narrow them to the minimum extent so required, and the parties will be
deemed to have substituted for such portion so deleted words which give
the maximum scope permitted under applicable law to Sections 5.1, 5.2 and
5.3.
ARTICLE VI
Miscellaneous Provisions
6.1 Entire Agreement. This Agreement and the written agreements referred to
herein set forth the entire agreement between Xxxxxxx and Company and
supersedes all prior agreements and understandings between the parties
with respect thereto.
6.2 Amendment and Modification. This Agreement may be amended, modified or
supplemented only by written agreement signed by each of the parties.
6.3 Waiver of Compliance. Consents. Except as otherwise provided in this
Agreement, any failure of any of the parties to comply with any
obligation, covenant, agreement or condition herein may be waived by the
party entitled to the benefit thereof only by a written instrument signed
by the party granting such waiver, but such waiver or failure to insist
upon strict compliance with such obligation, agreement or condition shall
not operate as a waiver of; or estoppel with respect to, any subsequent
or other failure. Whenever this Agreement requires or permits the consent
of any party, such consent shall be given in writing in a manner
consistent with the requirements for a waiver of compliance as set forth
in this Section 6.3.
6.4 Notices. All notices and other communications under this Agreement shall
be in writing and shall be deemed given if: (a) delivered personally; or
(b) mailed by certified mail (return receipt requested), postage prepaid;
or (c) sent by overnight courier; or (d) transmitted by telefacsimile; to
the parties at the following addresses (or at such other address for a
party as shall be specified by like notice, provided that notices of a
change of address shall be effective only upon receipt thereof):
(a) If to Xxxxxxx to: Xx. Xxxxxxx X. Xxxxxxx
X .X. Xxxxxxx & Associates, Inc.
0000 Xxxxx Xxxxx 00
XxXxxxx, Xxxxxxxx 00000
Telephone Number: 000-000-0000
Facsimile Number: 000-000-0000
With a copy to: Xxxxxx X. Xxxxxxxxxxx Esq.
XxXxxxx Xxxxx & Xxxxx
000 Xxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone Number: 000-000-0000
Facsimile Number: 000-000-0000
(b) If to Company, to: Xx. Xxxxxx X. Xxxxxxxxxx
Dauphin Technology, Inc.
000 Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Telephone Number: 000-000-0000
Facsimile Number: 000-000-0000
With a copy to: Xxxxxx X. Xxxxxxx, Esq.
Xxxxx and Xxxxxx, P.C.
00 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone Number: 000-000-0000
Facsimile Number: 000-000-0000
6.5 Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any party, nor is this
Agreement intended to confer upon any other person except the parties
hereto any rights or remedies hereunder.
6.6 Governing Law. This Agreement shall be governed by the laws of the State
of Illinois as to all matters including, but not limited to, matters of
validity, construction, effect, performance and remedies, and, as partial
consideration for the other party's execution and performance hereunder
each party waives personal service of any and all process upon it, to the
extent permitted by law, and consents that all such service of process be
made by upon such party at the address and in the manner set forth in
Section 6.4 of this Agreement and service so made shall be deemed to be
completed upon the earlier of actual receipt or three days after the same
shall have been posted to such party's address.
6.7 Binding Effect and Benefit. The provisions hereof shall be binding upon,
and shall inure to the benefit of; the parties, and their respective
heirs, executors, administrators, its successors, and assigns.
6.8 Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
6.9 Severability. Whenever possible, each of the provisions of this Agreement
shall be construed and interpreted in such a manner as to be effective
and valid under applicable law. If any provisions of this Agreement or
the application of any provision of this Agreement to any party or
circumstance shall be prohibited by, or invalid under applicable law,
such provision shall be ineffective to the extent of such prohibition
without invalidating the remainder of such provision, any other provision
of this Agreement, or the application of such provision to other parties
or circumstances.
6.10 Arbitration. Except as otherwise provided herein, any controversy,
dispute or claim between the parties arising out of; related to or in
connection with this Agreement or the performance or breach hereof shall
be submitted to and settled by arbitration conducted by the American
Arbitration Association in Chicago, Illinois, in accordance with its
commercial arbitration rules as then in effect; provided that the
arbitration shall be by a single arbitrator mutually selected by Xxxxxxx
and Company, and if the parties do not agree within thirty (30) days
after the date of notification of a request for such arbitration made by
either of the parties, the selection of the single arbitrator shall be
made by the American Arbitration Association in accordance with said
rules. In addition to, and not in substitution for any and all other
relief in law or equity that may be granted by the arbitrator, the
arbitrator may grant equitable relief and specific performance to compel
compliance hereunder. The determination of the arbitrator shall be
accompanied by a written opinion of the arbitrator and shall be final,
binding and conclusive on the parties, and judgment on the arbitrator's
award, including without limitation equitable relief and specific
performance, may be entered in and enforced by any court having
jurisdiction thereof Fees and expenses of the American Arbitration
Association and of the arbitrator shall be borne as shall be determined
by the arbitrator, and the arbitrator may in his discretion award
attorneys' fees and expenses in addition to any other remedy that is
allowed and regardless of whether such remedy includes an award of
damages.
6.11 Interpretation. The Article and Section headings contained in this
Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, Xxxxxxx and Company have executed this Agreement as of the
date set forth above.
Dauphin Technology, Inc.
By: Xxxxxx X. Xxxxxxxxxx
President, CEO
X. X. Xxxxxxx & Associates, Inc.
By: Xxxxxxx X. Xxxxxxx
Prtesident
EXHIBIT A
RESPONSIBILITIES: include but not limited to, all of the following:
a) Managerial
i) Day to day operations of RMS
ii) Hiring and firing of personnel
iii) Budgeting and reporting
iv) Sales coordination
b) Fiscal
i) Responsibility for profit and loss of RMS
ii) Maintain vendor and customer relationships
iii) Any Subsidiary commitments not in the course of business must be approved
iv) the Executive Committee (bank notes, leases, equipment purchases,
expenditures or commitments above $10,000.00)
c) Strategic
i) Execute Dauphin strategic plan for RMS as a subsidiary
ii) Report to Executive Committee on the progress and problems
d) Other Responsibilities
i) Serves as liaison between RMS and other entities within Dauphin
ii) Acts as a goodwill ambassador for Dauphin and RMS
iii) Other activities as from time to time may be directed by the President of
Dauphin, or Board of Directors of RMS
