EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement"), entered into as of August 20,
2007, by and between Xxxxxx + Xxxxxx, Inc., a Delaware corporation (the
"Company"), and Xxxxxxx X. Xxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive as its President and
Chief Executive Officer upon the terms and subject to the conditions set forth
in this Agreement; and
WHEREAS, the Executive is willing to accept such employment upon such
terms;
NOW, THEREFORE, in consideration of the covenants and agreements
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. EMPLOYMENT AND DUTIES
1.1. Term of Employment. The Executive's employment under this
Agreement shall commence as of July 1, 2007 and shall continue until June 30,
2011 (such period being herein referred to as the "Term").
1.2. General.
1.2.1. During the Term, the Executive shall have the title of
President and Chief Executive Officer of the Company and shall have such duties
as may be from time to time delegated to him by the Board of Directors of the
Company (the "Board"). The Executive shall faithfully and diligently discharge
his duties hereunder and use his best efforts to implement the policies
established by the Board. The Executive's responsibilities shall include, among
other things, to render executive, policy, operations and other management
services to the Company of the type customarily provided by persons situated in
similar executive and management capacities.
The Executive shall serve the Company loyally, faithfully and
to the best of the Employee's abilities and shall devote the Employee's full
working time and efforts to the performance of the Employee's duties hereunder.
The Executive shall not engage in any business activity that interferes with the
performance of the Executive's obligations under this Agreement and,
specifically, shall not engage in any business similar to the Company's business
as defined in the Company's then most recently filed Form 10-K, 10-Q or 8-K
apart from the Employee's employment hereunder during the Term.
1.3. Reimbursement of Expenses. The Company shall pay to the
Executive the reasonable expenses incurred by him in the performance of his
duties hereunder, in accordance with current practice, including, without
limitation, those incurred in connection with business related travel or
entertainment, or, if such expenses are paid directly by the Executive, the
Company shall promptly reimburse him for such payments, provided that the
Executive properly accounts for such expenses in accordance with the Company's
policy.
1.4. Consideration. In consideration for the Executive's execution
of this Agreement, the Company agrees that the Executive shall become employed
by the Company as set forth in this Agreement, the Executive shall be permitted
access to the Company's confidential information and shall be eligible to
receive post-Term severance payments as set forth in this Agreement (subject to
his compliance with Sections 7 and 8 of this Agreement). The Executive
understands, acknowledges and agrees that the Executive would not receive the
consideration specified in this Section 1.4, except for the Executive's
execution of this Agreement and the fulfillment of the promises contained
herein.
2. COMPENSATION
2.1. Base Salary. During the Term, the Executive shall be entitled
to receive a base salary ("Base Salary") at a rate of Three Hundred Fifty
Thousand Dollars ($350,000) per annum during the Term, which Base Salary shall
be payable in arrears in equal installments not less frequently than on a
bi-weekly basis in accordance with the payroll practices of the Company. The
Base Salary may be increased by the recommendation of the Compensation Committee
and as approved by the majority vote of the entire Board.
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2.2. Bonus. The Executive will be paid a bonus with respect to each
fiscal year (the "Bonus") at such time as determined by the Board, but not later
than one hundred twenty (120) days after the due date of the Company's 10-K for
such fiscal year, and not later than the March 15th following such fiscal year.
The Bonus will be based on actual EBITDA results for such fiscal year (the
"Actual EBITDA") compared to the EBITDA amounts for such fiscal year in the
budget that was approved by the Board of Directors (the "Budget EBITDA"), as
follows:
a) If the Actual EBITDA equals at least 120% of the Budget
EBITDA, the Bonus will equal 100% of Base Salary.
b) If the Actual EBITDA equals at least 100% of the Budget
EBITDA, but is less than 120% of the Budget EBITDA, the Bonus
will equal 75% of Base Salary.
c) If the Actual EBITDA equals at least 85% of the Budget EBITDA,
but is less than 100% of the Budget EBITDA, the Bonus will
equal 40% of Base Salary.
d) If the Actual EBITDA is less than 85% of the Budget EBITDA,
there will be no Bonus.
For these purposes, "EBITDA" shall mean the Net Income of the Company for
such period plus an amount which, in the determination of the Net Income of the
Company for such period, has been deducted for (i) interest expense, (ii) total
federal, state, local and foreign income taxes, and (iii) depreciation and
amortization expenses, each of (i) through (iii) as calculated in accordance
with GAAP. "Net Income" shall mean the net income for such period as determined
in accordance with GAAP. "GAAP" shall mean United States generally accepted
accounting principles.
2.3. Personal Commissions. The Executive will be paid commissions
and trails ("Commissions") at a payout rate consistent with the present payments
of Commissions to the Executive. All Commissions paid to the Executive will be
paid as a draw against Bonus (i.e., Bonus will be reduced dollar for dollar for
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Commissions paid). However, the Executive will not have to pay back any
Commissions paid no matter what Bonus is calculated to be in Section 2.2, or if
no Bonus is payable as calculated in Section 2.2.
2.4. Additional Compensation. In addition to the Base Salary,
Commissions and the Bonus, the Executive shall be entitled to receive such other
cash bonuses and such other compensation in the form of stock, stock options or
other property or rights as may from time to time be awarded him by the Board
during or in respect of his employment hereunder. The Base Salary, the Bonus and
such other compensation may be increased by the recommendation of the
Compensation Committee and as approved by the majority vote of the entire Board.
3. PLACE OF PERFORMANCE
In connection with his employment by the Company, the Executive
shall be based at the Company's principal executive offices in Poughkeepsie, New
York, or Fort Lauderdale, Florida, subject to the mutual agreement of the
Executive and the Company to relocate him to another office of the Company.
4. EMPLOYEE BENEFITS
4.1. Benefit Plans. The Executive shall, during the Term, be
included to the extent eligible thereunder in all employee benefit plans,
programs or arrangements of general application (including, without limitation,
any plans, programs or arrangements providing for retirement benefits, options
and other equity-based incentive compensation, profit sharing, bonuses,
disability benefits, health and life insurance, or vacation and paid holidays)
which shall be established by the Company or any affiliate of the Company, for,
or made available to, their respective senior executives ("Benefits"). During
the Term, the Benefits described in this paragraph 4 may only be reduced as a
result of a general reduction for senior executives.
4.2. Vacation. The Executive shall be entitled to not less than four
(4) weeks vacation at full pay for each year during the Term. Such vacation may
be taken in the Executive's discretion, and at such time or times as are not
inconsistent with the reasonable business needs of the Company.
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5. TERMINATION OF EMPLOYMENT
5.1. General. The Executive's employment under this Agreement may be
terminated with or without cause only on the following circumstances:
5.1.1. Death. The Executive's employment under this Agreement
shall terminate upon his death.
5.1.2. Disability. If, as a result of the Executive's
Disability (as defined below), the Executive shall have been absent from his
duties under this Agreement for ninety (90) consecutive days, or for an
aggregate of one hundred twenty (120) days during any 360 consecutive day period
, the Company may terminate the Executive's employment upon fifteen (15) days
prior written notice following the last day of such ninety (90) day or one
hundred twenty (120) day period; provided that the Executive has not returned to
full time performance of his duties during such fifteen (15) day period. For
purposes hereof, "Disability" shall mean that the Executive is unable to perform
his normal and customary duties hereunder as a result of physical or mental
incapacity, illness or disability.
5.1.3 Cause. The Company may terminate the Executive's
employment under this Agreement for Cause. Termination for "Cause" shall mean
termination of the Executive's employment because of the occurrence of any of
the following as determined by the Board after an in person hearing to determine
if Cause exists. The Executive shall have the opportunity to appear at the
hearing with counsel to testify and to present evidence to the Board.
(i) the failure or refusal by the Executive to substantially
perform his obligations under this Agreement or any directive
of the Board which is not inconsistent with the terms of this
Agreement, or any material breach of this Agreement by the
Executive (other than any such failure resulting from the
Executive's Disability); provided, however, that the Company
shall have provided the Executive with written notice that
such actions are occurring and the Executive has been afforded
a reasonable opportunity of at least ten (10) days to cure
same, or
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(ii) the indictment of the Executive for a felony or other
crime involving moral turpitude or dishonesty, or the
conviction of the Executive or the plea of nolo contendere by
the Executive to a misdemeanor (other than traffic
infractions); or
(iii) a material breach of Section 7 or Section 8 hereof or a
breach of any representation contained in this Agreement by
the Executive; or
(iv) a breach of fiduciary duty involving personal profit; or
(v) an act of dishonesty in connection with his employment
with the Company; or
(vi) the Executive's possession or use of illicit drugs, a
prohibited substance or alcohol, to the extent that in the
reasonable determination of the Board it impairs his ability
to perform his duties and responsibilities; or
(vii) the Executive having committed acts or omissions
constituting gross negligence or willful misconduct (including
theft, fraud, embezzlement, and securities law violations)
which is injurious to the Company, monetarily, or otherwise;
or.
(viii) If at any time the Company's securities are listed on a
stock exchange or Nasdaq Stock Market, the Executive having
committed any material violation of, or material noncompliance
with, any securities law, rule or regulation or stock exchange
or Nasdaq Stock Market regulation rule relating to or
affecting the Company;
(ix) The Executive's material failure or refusal to honestly
provide a certificate in support of the chief executive
officer's and/or principal executive officer's certification
required under the Xxxxxxxx-Xxxxx Act of 2002, or any other
filings under the federal securities laws including the rules
and regulations promulgated thereunder.
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5.1.4. Termination by the Executive for Good Reason. The Executive
may terminate this Agreement for Good Reason (as defined below) by delivering to
the Board written Notice of Termination within fifteen (15) days following the
event which constitutes such Good Reason, to be effective on the tenth (10th)
day following the date of such Notice of Termination. "Good Reason" means that,
without the express written consent of the Executive, the occurrence of any of
the following events occurs: (i) there is any material reduction or diminution
(except temporarily during any period of disability) in the Executive's
authority, duties or responsibilities with the Company; (ii) the Executive no
longer reports to the Company's board of directors (or similar governing body)
or (iii) there is a material breach by the Company of any material provision of
this Agreement, including a reduction in the Base Salary or the relocation of
the Executive's principal place of employment by more than fifty (50) minutes
from either of the locations set forth in Section 3, in either case, without the
Executive's consent) and, in any such case, within 90 days following the
occurrence of an event described in (i), (ii) or (iii) the Executive notifies
the Company that such event has occurred and the Company fails to cure the event
(and the Executive does not waive the Company's failure to cure the event)
within thirty (30) days after its receipt of such notice.
5.2. Notice of Termination. Any termination of the Executive's
employment by the Company or by the Executive (other than termination by reason
of the Executive's death) shall be communicated by written Notice of Termination
to the other party of this Agreement. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated.
5.3. Date of Termination. The "Date of Termination" shall mean (a)
if the Executive's employment is terminated by his death, the date of his death,
(b) if the Executive's employment is terminated pursuant to subsection 5.1.2
above, fifteen (15) days after Notice of Termination is given (provided that the
Executive shall not have returned to the performance of his duties on a
full-time basis during such fifteen (15)-day period), (c) if the Executive's
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employment is terminated pursuant to subsection 5.1.3 above, the date specified
in the Notice of Termination after the expiration of any applicable cure
periods, if any, (d) if the Executive's employment is terminated pursuant to
subsection 5.1.4 above, the date specified in the written Notice, and (e) if the
Executive's employment is terminated for any other reason, the date on which a
Notice of Termination is given.
5.4 Compensation Upon Termination.
5.4.1 Termination for Cause. If prior to the expiration of the
Term, the Executive's employment shall be terminated for Cause, the Company
shall pay the Executive his Base Salary (but no Bonus for the current fiscal
year other than Commissions) through the Date of Termination, at the rate in
effect at the time Notice of Termination is given, and all expenses and accrued
Benefits arising prior to such termination which are payable to the Executive
pursuant to this Agreement through the Date of Termination and the Company shall
have no further obligation with respect to this Agreement. In addition, the
Executive shall be entitled to any Bonus earned but not yet paid for a prior
fiscal year.
5.4.2 Termination Due to an Involuntary Change of Control.
(a) Subject to the provisions of subsections 5.4.4 and 5.4.7
hereof, if, prior to the expiration of the Term, the Executive's employment
hereunder is terminated by the Company due to an "Involuntary Change of
Control", the Company shall pay to the Executive all expenses and accrued
Benefits arising prior to such termination which are payable to the Executive
pursuant to this Agreement through the Date of Termination. In addition, the
Company shall pay to the Executive an amount equal to his Base Salary at the
rate as then in effect on the date of the Notice of Termination, and his
Termination Bonus (as defined in Section 5.4.6), for a period (such period being
referred to hereinafter as the "Severance Period") measured as the greater of
three (3) years from the Date of Termination, or the ending date of the Term. In
addition, the Executive shall be entitled to any Bonus earned but not yet paid
for a prior fiscal year in accordance with Section 2.2.
(b) During the Severance Period, the Executive shall be
entitled to continue to participate in all employee benefit plans that the
Company provides (and continues to provide) generally to its senior executives.
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(c) An "Involuntary Change of Control" shall be deemed to have
occurred when, without being initiated or solicited by the Company or by the
Executive, by tender offer, merger, acquisition or similar means, any "person"
as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and as used in Section 13(d) and 14(d) thereof, including
a "group" as defined in Section 13(d) of the Exchange Act, but excluding the
Executive, or the Company or any subsidiary or any affiliate of the Company or
any employee benefit plan sponsored or maintained by the Company or any
subsidiary of the Company (including any trustee of such plan acting as
trustee), becomes the "beneficial owner" (as defined in Rule 13(d)(3) under the
Exchange Act) of securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding securities, or there is
a sale of substantially all of the Company's assets (meaning more than 50% of
the assets are sold).
5.4.3. Termination Without Cause Including a Voluntary Change
of Control.
(a) Subject to the provisions of subsections 5.4.4 and 5.4.7
hereof, if, prior to the expiration of the Term, the Executive's employment
hereunder is terminated by the Company Without Cause, including a Voluntary
Change of Control a ("Voluntary Change of Control"), the Company shall pay to
the Executive all expenses and accrued Benefits arising prior to such
termination which are payable to the Executive pursuant to this Agreement
through the Date of Termination. In addition, the Company shall pay to the
Executive an amount equal to his Base Salary at the rate as then in effect on
the date of the Notice of Termination, and his Termination Bonus (as defined in
Section 5.4.6), for a period (such period being referred to hereinafter as the
"Severance Period") measured as the greater of one (1) year from the Date of
Termination, or the ending date of the Term. In addition, the Executive shall be
entitled to any Bonus earned but not yet paid for a prior fiscal year in
accordance with Section 2.2
(b) During the Severance Period, the Executive shall be
entitled to continue to participate in all employee benefit plans that the
Company provides (and continues to provide) generally to its senior executives.
(c) "Without Cause" under this Section 5.4.3 shall mean any
termination of this Agreement that is not due to: the death or disability of the
Executive; a termination of the Executive with Cause; or a termination by the
Executive with Good Reason.
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(d) A "Voluntary Change of Control" shall be deemed to have
occurred when, after being initiated or solicited by the Company or by the
Executive, by tender offer, merger, acquisition or similar means, any "person"
as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and as used in Section 13(d) and 14(d) thereof, including
a "group" as defined in Section 13(d) of the Exchange Act, but excluding the
Executive, or the Company or any subsidiary or any affiliate of the Company or
any employee benefit plan sponsored or maintained by the Company or any
subsidiary of the Company (including any trustee of such plan acting as
trustee), becomes the "beneficial owner" (as defined in Rule 13(d)(3) under the
Exchange Act) of securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding securities, or there is
a sale of substantially all of the Company's assets (meaning more than 50% of
the assets are sold).
5.4.4. Death During Severance Period. In the event of the
Executive's death during the Severance Period, payments of Base Salary and the
Termination Bonus under this Section 5.4 and payments under the Company's
employee benefit plan(s) shall continue to be made in accordance with their
terms during the remainder of the Severance Period to the beneficiary designated
in writing for such purpose by the Executive or, if no such beneficiary is
specifically designated, to the Executive's estate.
5.4.5. Termination upon Death or Disability. In the event of
the termination of the Executive's employment by reason of death or Disability,
the Company shall pay the Executive his Base Salary and a termination Bonus
prorated through the Date of Termination, at the rate then in effect, and all
expenses or accrued Benefits, including any earned and unpaid Bonus for a prior
fiscal year, arising prior to such termination which are payable to the
Executive pursuant to this Agreement through the Date of Termination. In
addition, the Executive and/or his beneficiaries shall be entitled to such other
Benefits as shall be determined in accordance with the benefit plans maintained
by the Company.
5.4.6. Termination Bonus. For purposes of this Section 5.4,
Termination Bonus shall be a bonus computed at one hundred percent (100%) of the
Executive's Base Salary.
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5.4.7 Payments and Benefits During Severance Period.
(a) Except as provided in Subsection (b), the cash amounts payable under
Section 5.4.2 or Section 5.4.3 shall be paid in equal monthly installments
during the applicable Severance Period.
(b) If the Executive is a "specified employee" within the meaning of
section 409A of the Internal Revenue Code of 1986, as amended, as of his Date of
Termination (as determined in accordance with the methodology established by the
Company as in effect on the Date of Termination), then to the extent that cash
payments and benefits under Section 5.4.2 or Section 5.4.3 (other than benefits
described in Subsection (c)) during the Applicable Period would exceed the
Applicable Amount, such payments shall be paid to the Executive in a single sum
on the first business day following the end of the Applicable Period.
(c)Subject to Subsection (b), during the applicable Severance Period, the
Executive shall be entitled to continue to participate in all employee benefit
plans that the Company provides (and continues to provide) generally to its
senior executives (to the extent permitted by the plans as then in effect), to
the extent such plans provide for coverage and benefits that are not includible
in the Executive's gross income for Federal Income Tax purposes.
(d) The "Applicable Period" is the period beginning on the Executive's
Date of Termination and ending on the first date that is six (6) months after
the Executive's Date of Termination.
(e) The "Applicable Amount" is the amount equal to two times the lesser
of: (1) the sum of the Executive's annualized compensation from the Company
based upon the annual rate of pay for services provided to the Company for the
taxable year of the Executive preceding the taxable year of the Executive's Date
of Termination (adjusted for any increase during that year that was expected to
continue indefinitely if the Executive had not terminated employment); or (2)
the maximum amount that may be taken into account under a qualified plan
pursuant to section 401(a)(17) of the Code for the year of the Executive's Date
of Termination.
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6. INSURABILITY; RIGHT TO INSURE
During the continuance of the Executive's employment hereunder, the
Company shall have the right to maintain key man life insurance in its own name
covering the Executive's life in such amount as shall be determined by the
Company, for a term ending on the termination or expiration of this Agreement.
The Executive shall use his reasonable best efforts to assist the Company in
procuring of such insurance by submitting to the required medical examinations,
if any, and by filling out, executing and delivering truthful applications and
other instruments in writing as may be reasonably required by an insurance
company or companies to which application or applications for insurance may be
made by or for the Company.
7. PROPRIETARY INFORMATION; CONFIDENTIALITY; NON-COMPETITION;
NONSOLICITATION
7.1. The term "Proprietary Information" means information that was or is
developed by, became or becomes known by, or was or is assigned or otherwise
conveyed to or required by the Company, and which has any commercial or economic
value, actual or potential, in the Company's business, and includes, without
limitation, trade secrets, copyrights, ideas, techniques, know-how, inventions
(whether patentable or not), and/or any other information of any type relating
to designs, configurations, toolings, documentation, recorded data, schematics,
source code; object code, master works, master databases, algorithms, flow
charts, formulae, circuits, works of authorship, mechanisms, research,
manufacture, improvements, assembly, installation, intellectual property
including patents and patent applications, business plans, past or future
financing, marketing, forecasts, pricing, customers, vendors, costs, the
salaries, duties, qualifications, performance levels, and terms of compensation
of other employees, and/or cost, financial statements or other financial data
concerning any of the foregoing or the Company and its operations generally. The
Executive understands that the provision of his employment creates a
relationship of confidence and trust between him and the Company with respect to
the Company and the Proprietary Information of the Company and its customers
which may be learned by the Executive during the period of the Executive's
employment.
7.2 The Executive acknowledges and agrees that all Proprietary Information
and all patents, copyrights, trade secret rights, rights with respect to mask
works and other rights (including throughout, without
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limitation, any extensions, renewals, continuations or divisions of any of the
foregoing) in connection therewith shall be the sole property of the Company. To
the extent that, for any reason, such Proprietary Information or rights may not
vest in the Company, the Executive hereby sells, transfers, conveys and assigns
to the Company any such rights or rights he may have or acquire in such
Proprietary Information. At all times, both during the Term and thereafter, the
Executive will keep in strict confidence and trust and will not use or disclose
any Proprietary Information or anything relating to it to any other person,
whether or not for reasons of gain, without the written consent of the Company,
except as may be necessary in the ordinary course of performing his duties to
the Company. The Executive will defend the Company against all claims, actions,
suits, or other proceedings against the Company arising out of or resulting from
breach of this Section 7, and shall indemnify and hold the Company harmless from
and against all judgments, losses, liabilities, damages, costs and expenses
(including without limitation, reasonable attorneys' fees and attorneys'
disbursements) arising out of or incurred in connection with all such claims,
actions, suits or other proceedings.
7.3 In the event of the termination of the Executive's employment, whether
by the Company or the Executive, for any reason, the Executive shall return all
documents, records, apparatus, equipment and other physical property, or any
reproduction of such property, whether or not pertaining to Proprietary
Information, furnished to the Executive by the Company or produced by the
Executive or others in connection with the Executive's employment immediately as
and when requested by the Company.
7.4 During the Term of this Agreement and for a period of two (2) years
thereafter (whether or not this Agreement has been terminated by the Company or
the Executive for any reason prior to the expiration of the Term), the Executive
will not, either directly or through others:
(a) solicit, cause to be solicited, or attempt to solicit any
employee, independent contractor, consultant or customer or client of the
Company to terminate his relationship with the Company in order to become
an employee, consultant, independent contractor, customer or client to or
for any other person or entity, or otherwise encourage or solicit any
employee, consultant, independent contractor, customer or client of the
Company to leave the Company for any reason or to devote less than all of
any such employee's efforts to the affairs of the Company; or
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(b) take any action which constitutes an interference with or a
disruption of any of the business activities of the Company.
7.5 During the Term of this Agreement and for a period of one (1) year
thereafter (whether or not this Agreement has been terminated by the Company or
the Executive for any reason prior to the expiration of the Term), the Executive
will not, either directly or through others: engage, directly or indirectly, or
have an interest, directly or indirectly, anywhere in the United States of
America or any other geographic area where the Company does business or in which
its products or services are marketed, alone or in association with others, as
principal, officer, agent, employee, director, partner or stockholder (except
with respect to the Executive's employment by the Company), or through the
investment of capital, lending of money or property, rendering of services or
otherwise, in any business competitive with or substantially similar to the
businesses engaged in by the Company during the Term of this Agreement (it being
understood hereby, that the ownership by the Employee of five percent (5%) or
less of the stock of any company listed on a national securities exchange shall
not be deemed a violation of this Section 7.5).
7.6 At no time during the Term, or thereafter shall the Executive directly
or indirectly, disparage the commercial, business or financial reputation of the
Company;
7.7 The Executive represents that his performance of services to the
Company will not breach any agreement or obligation to keep in confidence
Proprietary Information acquired by him in confidence or in trust prior to the
Executive's provision of services to the Company. The Executive has not entered
into, and the Executive agrees that he will not enter into, any agreement either
written or oral in conflict with this Agreement or in conflict with his
employment by the Company.
7.8 During the Executive's employment by the Company, the Executive will
not improperly use or disclose any confidential information or trade secrets, if
any, of any former employer or any other person to whom the Executive has an
obligation of confidentiality, and the Executive will not bring onto the
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premises of the Company any unpublished documents or any property belonging to
any former employer or any other person to whom the Executive has an obligation
of confidentiality unless expressly authorized in writing by that former
employer or person. The Executive will use in the performance of his services
only information which is generally known and used by persons with training and
experience comparable to his own, which is common knowledge in the industry or
otherwise legally in the public domain, or which is otherwise provided or
developed by the Company.
7.9 In the event that the Executive is no longer employed by the Company,
he hereby consents to the notification of any new employer of his rights and
obligations under this Agreement.
7.10 Without intending to limit the remedies available to the Company,
including damages for breach of contract, the Executive acknowledges that a
breach of any of the covenants contained in this Section 7 may result in
material and irreparable injury to the Company, or its affiliates or
subsidiaries, for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of such a breach or threat the Company shall be entitled to seek a temporary
restraining order and/or a preliminary or permanent injunction restraining the
Executive from engaging in activities prohibited by this Section 7 or such other
relief as may be required specifically to enforce any of the covenants in this
Section 7. The Executive hereby acknowledges and agrees that the type and
periods of restrictions imposed in this Section 7 are fair and reasonable and
are reasonably required for the protection of the Company's confidential
information and the goodwill associated with the business of the Company.
Further, the Executive acknowledges and agrees that the restrictions imposed in
this Section 7 will not prevent his from obtaining suitable employment after his
employment with the Executive ceases or from earning a livelihood. If for any
reason it is held that the restrictions under this Section 7 are not reasonable
or that consideration therefor is inadequate, such restrictions shall be
interpreted or modified to include as much of the duration and scope identified
in this Section as will render such restrictions valid and enforceable.
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8. EXECUTIVE'S COOPERATION
During the Term and thereafter, the Executive shall cooperate with the
Company in any internal investigation or administrative, regulatory or judicial
proceeding as reasonably requested by the Company (including, without
limitation, the Executive being available to the Company upon reasonable notice
for interviews and factual investigations, appearing at the Company's request to
give testimony without requiring service of a subpoena or other legal process,
volunteering to the Company all pertinent information and turning over to the
Company all relevant documents which are or may come into the Executive's
possession, all at times and on schedules that are reasonably consistent with
the Executive's other permitted activities and commitments). In the event the
Company requires the Executive's cooperation in accordance with this section
after the termination of the Term, the Company shall reimburse the Executive for
all of his reasonable costs and expenses incurred, in connection therewith, plus
pay the Executive a reasonable amount per day for his time spent.
9. RIGHTS OF INDEMNIFICATION
The Company shall indemnify the Executive to the fullest extent permitted
by the General Corporation Law of the State of Delaware, as amended from time to
time, for all amounts (including without limitation, judgments, fines,
settlement payments, expenses and attorney's fees) incurred or paid by the
Executive in connection with any action, suit, investigation or proceeding
arising out of or relating to the performance by the Executive of services for,
or the acting by the Executive as a director, officer or employee of the
Company, or any other person or enterprise at the Company's request.
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10. MISCELLANEOUS
10.1. Notices. All notices or communications hereunder shall be in
writing, addressed as follows:
To the Company: Xxxxxx + Xxxxxx, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Legal Department
Fax: (000) 000-0000
To the Executive: Xxxxxxx X. Xxxx
0 Xxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
All such notices shall be conclusively deemed to be received and shall be
effective (i) if sent by hand delivery, upon receipt, (ii) if sent by telecopy
or facsimile transmission, upon confirmation of receipt by the sender of such
transmission, (iii) if sent by overnight courier, one business day after being
sent by overnight courier, or (iv) if sent by registered or certified mail,
postage prepaid, return receipt requested, on the fifth day after the day on
which such notice is mailed.
10.2. Severability. Each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement, including the provisions of Section 7,
is held to be prohibited by or invalid under applicable law, such provision will
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
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10.3. Binding Effect; Benefits. Executive may not delegate his
duties or assign his rights hereunder. This Agreement shall inure to the benefit
of, and be binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.
10.4 Entire Agreement. This Agreement represents the entire
agreement of the parties and shall supersede any and all previous contracts,
arrangements or understandings between the Company and the Executive. This
Agreement may be amended at any time by mutual written agreement of the parties
hereto. In the case of any conflict between any express term of this Agreement
and any statement contained in any employment manual, memo or rule of general
applicability of the Company, this Agreement shall control.
10.5 Warranty. The Executive hereby represents and warrants as
follows: (i) that the execution of this Agreement and the discharge of the
Executive's obligations hereunder will not breach or conflict with any other
contract, agreement, or understanding between the Executive and any other party
or parties; and (ii) the Executive's resume which was provided to the Company by
the Executive and other statements made about the Executive's employment history
to the Company by the Executive are true, accurate and complete in all material
respects.
10.6 Withholding. The payment of any amount pursuant to this
Agreement shall be subject to applicable withholding and payroll taxes, and such
other deductions as may be required under the Company's employee benefit plans,
if any.
10.7 Governing Law; Consent to Personal Jurisdiction.
(a) This Agreement shall be deemed to have been made and
delivered in Poughkeepsie New York and shall be governed as to validity,
interpretation, construction, effect and in all other respects by the internal
laws of the State of New York.
(b) At the Company's option, any dispute or controversy under
this Agreement shall be determined: in an arbitration proceeding before three
(3) arbitrators at the AAA; or in a lawsuit at the New York State Supreme Court.
The award in any arbitration hereunder shall be final, and judgment upon the
award rendered may be entered in any court, state or Federal, having
jurisdiction and the parties hereby submit to the jurisdiction of any such court
for the purpose of such arbitration and the entering of such judgment.
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(c) The venue of the arbitration or the Supreme Court action
shall be picked and determined by the Company from one of the following:
Dutchess County, New York; New York County; New York or Broward County, Florida.
(d) The prevailing party in any arbitration or lawsuit shall
recover from the other party all costs and disbursements of the arbitration or
lawsuit, including reasonable legal fees.
(e) The parties further agree to accept and acknowledge
service of any and all process which may be served in any such suit, action or
proceeding, and agree that service of process upon either such party may be made
in accordance with Section 10.1 of this Agreement and shall be deemed in every
respect effective service of process upon such party, in any such suit, action
or proceeding.
10.8 Execution in Counterparts. This Agreement may be executed by
the parties in one or more counterparts, each of which shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement, and shall become effective when one or more counterparts has been
signed by each of the parties hereto and delivered to each of the other parties
hereto. A photocopy or electronic facsimile of this Agreement or of any
signature hereon shall be deemed an original for all purposes.
10.9 Survival. The provisions of Sections 7 and 8 of this Agreement
shall survive the termination of this Agreement.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed and the Executive has hereunto set his hand, as of the day and year
first above written:
THE COMPANY:
XXXXXX + CIOCIA, INC.
By: /s/ Xxx X. Xxxxxxxxxxx
------------------------
Name: Xxx X. Xxxxxxxxxxx
Title: Vice President
EXECUTIVE:
/s/ Xxxxxxx X. Xxxx
----------------------------
Xxxxxxx X. Xxxx
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