THIS AGREEMENT is made this 1st day of January, 1999, by
and between DATAMEG CORP., a Virginia Corporation (the "Company")
and Xxxxxx Xxxxxx (hereinafter the"Executive").
DESCRIPTION OF THE COMPANY'S BUSINESS
AND ACKNOWLEDGEMENTS BY EXECUTIVE
The Company is engaged in the business of design, development, manufacture,
use and sale of high speed data and video transfer technology and related
products for use in transmission over Plain Old Telephone System ("POTS"),
DSL and ISDN line as well as Radio Frequency ("RF") transmission media.
Executive acknowledges that the Company's business and services are highly
specialized, the identity and particular needs of the Company's customers
and suppliers are not generally known, the technology which the Company
has developed is considered to be proprietary and the documents and
information regarding the Company's technology, product capabilities,
customers, suppliers, services, methods of operation, sales, pricing,
and costs are highly confidential and constitute trade secrets. Executive
further acknowledges that the services rendered to the Company by
Executive has been or will be of a special and unusual character which
has a unique value to the Company and that Executive has had or will
have access to trade secrets and confidential information belonging to
the Company,the loss of which cannot adequately be compensated by damages
in an action at law.
In the course of such business the Company, at great expense, is developing
technology and establishing and maintaining contacts and contracts with a
large number of customers and potential customers, and the technology and
the contacts and contracts with said customers and potential customers have
come to be of great value to the Company and will continue to increase in
value in the future. Great loss and damage will be suffered and sustained
by the Company if, during the period of employment or upon the termination
thereof, the Executive should, for himself, or on behalf of any other
person, partnership, corporation or any other legal entity utilize such
technology and/or proprietary information or call for or deliver services
to, or solicit business in competition with the business of the Company
from customers with whom the Executive has had contact during the term
of his employment with the Company, or if the Executive should disclose
any trade secrets or other confidential information of the Company
obtained by the Executive during the course of employment with the Company.
NOW THEREFORE, in consideration of the foregoing, of the mutual promises
herein contained, and of other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto,
intending legally to be bound, hereby agree as follows:
TERMS AND CONDITIONS OF EMPLOYMENT
1. Scope of Employment. The Company hereby agrees to employ the
Executive upon the terms and conditions herein set forth, to perform such
executive duties as may be determined and assigned to him by the Board
of Directors of the Company (hereinafter the "Board"). The Executive
hereby agrees to serve in such capacities and to devote his full time
and efforts, to the performance of such duties (except for reasonable
attention to personal matters) until the earlier of Termination Date
or Expiration Date of this Agreement (as set forth in Section 2 herein),
except during holidays, vacations and reasonable absences due to illness or
other incapacity. Executive shall be given the title of President, and
shall have primary responsibility for the day-to-day operations of
the Company, and for carrying out the policies
established by the Board.
2. Term. The term of the Executive's employment hereunder shall
begin effective the 1st of Janary 1999. The Executive will be a full time
consultant to the company. However, as soon as practicable after the
Company shall have obtained sufficient financing (a minimum of One Million
Five Hundred Thousand Dollars ($1,500,000.00)) from an equity or debt
offering in a private investment offering and/or public offering to
fund operations, the Executive will become a full time salaried employee.
This term shall end at such time as is specified in this Section 2.
This Agreement shall be terminated only upon the occurrence of one or
more of the following conditions:
a. In the event of the Corporation's involuntary dissolution,
receivership or bankruptcy, or upon the dissolution or termination
of the Corporation. In such case, Executive's Termination Date
shall be the date of such event.
b. By the death of the Executive, in which event the Company
shall pay to his legal representatives the Base Salary which
would otherwise be payable to the Executive for the period
ending on the last day of the month in which such death occurs
(which date shall be Executive's Termination Date) plus any
death benefit provided by Section 5 herein.
c. At the option of the Company, and without further
liability or obligation in its part hereunder, upon the violation
by the Executive of any of the provisions of Sections 1 and 9-13.
d. At the option of the Company upon one month's written
notice if, by reason of illness or other disability, the Executive
is permanently incapacitated (as defined in Section 6 herein) for
the performance of the services required by this Agreement.
In such case, Executive's Termination Date shall be one month
from the date of such written notice. Provided,however, that
in the event of termination under this Section 2.d., the
Company shall pay the Executive the Disability Benefit set forth
in Section 6 of this Agreement.
e. By the Company for good cause, upon at least thirty (30)
days written notice and without further obligation to the Company
except to pay the Executive's salary (as defined in Section 3 hereof)
for twelve months from the date of such termination. The last day
of such month shall be Executive's Termination Date if he is
terminated for good cause. For purposes of this Agreement, good
cause shall be considered to exist under any of the following
circumstances, as determined by the Board of Directors:
i. If Executive shall be guilty of a breach of the
terms of Sections 1 and/or 9-13 hereof or of dishonesty, chronic
absenteeism, gross misconduct, conviction of a felony, or conviction
of any misdemeanor involving moral turpitude;
ii. If Executive shall engage in illegal or other wrongful
conduct substantially detrimental to the business or reputation of the
Company
f. Provided, however, that in all events this Agreement
shall expire on March 30, 2002 (the "Expiration Date") unless
renewed according to the provisions of this Section 2.f. This Agreement
shall be automatically renewed for an additional one year period from
the Effective Date unless either party gives written notice to the
other party that it desires not to renew the Agreement at lease 30
days prior to the Expiration Date. If either party gives such written
notice not to renew at least 30 days prior to the Expiration Date, the
Agreement shall expire on the Expiration Date.
g. Executive may voluntarily resign his employment or position
upon at least one month's written notice to the Board. In such case his
Termination Date shall be the effective date of his resignation, and the
Board has the option of canceling all outstanding stock options, if
any, then held by the Executive.
h. For purpose of this Agreement, the Executive's Termination Date
shall be the date on which Executive's employment is deemed to terminate
pursuant to this Section 2. Unless specifically provided to the contrary
in this Agreement, Executive shall be entitled to no further Base
Salary or Fringe Benefits subsequent to his Termination Date.
3. Base Salary. The Company agrees to pay the Executive, and
the Executive agrees to accept, during the term of this Agreement, in
full payment for all services to be rendered by the Executive hereunder
a Base Salary of: For the period January 1, 1999 to April 15, 1999 in
the amount of $10,000.00 per month as 1099 Miscellaneous income, payable
on the 15th and 30th. April 15, 1999 to October 15, 1999 in the amount
of $18,000.00 per month as 1099 Miscellaneous income, payable on the
15th and 30th. For the period commencing October 15, 1999 until review
and adjustment by the Board the Executive will be paid $36,000 per month
as 1099 Miscellaneous income. Upon the company obtaining financing as
described in Section 2 the Executive base salary will be $500,000 per
year paid under applicable Federal, State and Local laws and paid not
less than monthly. The Company agrees to review the Executive's salary
annually at or around January of each year (or such other time as the
Company and Executive mutually agree) for possible adjustment (upward or
downward) based upon the Executive's and the Company's performance. The
results of this review shall be documented in the meeting minutes of the
Board. In addition, Executive shall also be eligible for such bonus
payments, stock options, and deferred compensation if and when such
plans are adopted by the Company to be awarded by the Company to senior
executives based upon the Company's and the Executive's
performance.
4. Fringe Benefits, Reimbursement of Expenses, etc.
Executive shall be entitled to the following employee benefits, as
such plans are adopted by the Company; these benefits shall be
collectively entitled the "Fringe Benefits".
a. The Executive shall be entitled to personal leave and holidays
during the term of this Agreement in accordance with the Company's
then current customary policies for executive employees.
b. Executive shall be entitled to be covered by the Company's
medical, group life insurance plans and other employee benefits
as such plans are adopted by the Company for application to the
Company's executive employees.
c. The Executive is authorized to incur reasonable expenses in
undertaking the business of the Company, including expense for
entertainment, and similar items. The Company will reimburse the
Executive for all such expenses upon the presentation by the
Executive from time to time, but no less frequently than quarterly, of
an account of and receipts, where appropriate, for such expenditures
accompanied by a statement of the purpose therefor. The Company will
also provide the Executive a Company credit card to facilitate
administration of valid business expenses. The Company credit
card shall be used only for valid business expenditures for or on
behalf of the Company.
d. Executive shall be entitled to participate in those retirement
plans, both defined contribution and defined benefit, qualified or
non-qualified, as they become available to the Company's executive
employees.
e. The Company will provide Executive with an automobile for his
use, with all expenses, including tags, taxes and title, fuel,
maintenance, and repairs, not to exceed $___TBD_______ per year.
f. The Company will provide an annual allowance of not more than
$___TBD_______. It is the Company's intention that the Executive
will use the allowance for health, financial planning or quality of
life purposes in order to enhance his ability to meet the corporate
purposes and performance objectives of DataMEG CORP. Any amount not
used in any given year will be forfeited and will not be paid to the
Executive in cash. The Executive understands that any amount
reimbursed to him under this Section 4.f. will be included as
taxable compensation on his W-2 Form for said taxable year.
5. Death Benefit. The Company shall provide a death
benefit to Executive equal to two times Executive's then current Base
Salary provided that life insurance can be obtained under a nonrated
policy for such amount. If insurance cannot be obtained on the life of
the Executive or if such insurance cannot be obtained except under a
policy which is rated because of Executive's physical condition, then
the benefit provided hereunder shall be equal to one times Base Salary.
In addition, in the event of Executive's death while employed by the
Company, his personal representative shall be entitled to receive any
accrued annual leave and sick leave which has not been used by
Executive. It is specifically agreed and understood that
the death benefit of two times Base Salary (or one times Base Salary
under the conditions herein stated) shall be in addition to any
benefits otherwise payable to Executive's chosen beneficiaries
under any group term policies of life insurance maintained for
Executive's benefit by the Company. In the event that the Internal
Revenue Code does not permit group term coverage for
Executive equal to two times his annual Base Salary, the Company may
purchase and maintain such individual policies of life insurance as are
necessary so as to provide the aforementioned death benefit. Provided,
however, if such individual insurance can only be obtained at rates that
are rated for medical conditions, the amount of such coverage will be
correspondingly reduced (to an amount no less than one times Executive's
Base Salary) to reflect the increment in cost above nonrated policies, or,
in the alternative, the Executive may pay the incremental difference
in premium cost to maintain insurance at a level equal to two times
annual Base Salary. Executive agrees to execute such application for
insurance and to make himself available for and to undergo all reasonable
medical examinations which may be required in event the Company
determines to procure or place any insurance to fund all or any part
of the obligations it may have under this Agreement.
6. Disability.
a. In the event the Executive becomes totally and
permanently disabled during the term of this Agreement, he shall be
entitled to receive a Disability Benefit equal to his Base Salary in
effect when he becomes disabled for the first twelve months of
disability and thereafter sixty percent (60%) of his Base Salary in
effect when he becomes disabled until the earlier of Executive's death
or two years from becoming disabled. Thereafter, the obligations of
the Company shall terminate. Such Disability Benefit shall be offset
by payments received by the Executive under any long term disability
policies, if any, maintained by the Corporation for Executive, sick
leave paid to Executive by the Company and any Social Security benefits
received by Executive so that the total Disability Benefit received by
Executive including such amounts shall not exceed the amount set
forth in the first two sentences of this Section.
b. The Corporation may, at its sole and absolute discretion,
purchase and maintain a long-term disability policy for Executive to
provide some or all of the Disability Benefit set forth in this Section.
In the event that the Company chooses to purchase such a policy, the
Executive agrees to cooperate and make himself available for physical
examinations or such other requirements as are reasonably imposed by
the insurer that is issuing such a policy.
c. For purposes of this Agreement, disability shall have the
same definition as is set forth in the then current group disability
policy, if any, maintained by the Company for its executive employees.
In the event that the Company does not have such a group term
disability policy, the definition of disability shall be as is set
forth in the individual disability policy, if any, purchased in order
to fund the Company's liability under these provisions. In the event
that the Company maintains no such disability policies, disability shall
mean any mental or physical illness or condition rendering the Executive
permanently incapable of performing his usual and customary duties for
the Company. The determination of the Executive's disability shall by
made by a physician retained by the Company for this purpose and his
or her determination shall be binding and conclusive.
d. Executive agrees to make himself available for and to undergo
all reasonable medical examinations that may be necessary for purposes
of determining Executive's disability under the terms of this Section.
e. Prior to termination of this Agreement, as noted in Section 2
above, the Executive will be given the option to continue, at his expense,
the medical and life insurance coverage if such continuing coverage is
available under the existing company insurance policies.
7. Indemnification.
The Company shall indemnify and hold Executive harmless
for his acts or decisions made in good faith in his capacity as either
a director, officer or executive of the Company, so long as Executive
reasonably believed that the acts or decisions were in the best interests
of the Company. The indemnification provided for in this Section 7
shall not extend to any criminal proceedings, nor shall it apply to any
proceeding charging improper personal benefit to the Executive. The
Company may obtain coverage for Executive under an insurance policy
covering the directors, officers and other executives of the Company
against claims set forth herein if such coverage is possible at a
reasonable cost. The Company shall pay all expenses including
attorney's fees, court costs and settlements in connection with
the defense and resolution of such claims.
8. Severance.
If Executive is dismissed for cause as defined in Section 2.e. or for
the reasons set forth in Section 2.c., he shall not be entitled to
any severance pay beyond his Termination Date, and the Board has the
option of canceling all outstanding stock options, if any, held by
the Executive. If Executive voluntarily leaves the employment of the
Company prior to the Expiration Date of this Agreement as set forth
in Section 2, he shall not be entitled to any severance pay beyond his
Base Salary through his Termination Date. If Executive is involuntarily
terminated by the Company for reasons other than those set forth in
Section 2.c. or 2.e. of this Agreement, he shall be entitled to, as
liquidated damages, his salary for the remaining term of this Agreement
through its Expiration Date as set forth in Section 2.f. For purposes of
the preceding sentence, Executive shall be deemed to be involuntarily
terminated if:
a. He is removed from the position of Chief Operating
Officer; or
b. His duties and responsibilities are significantly
reduced from those specified in Section 1 herein.
If Executive is entitled to severance pay pursuant to this Section 8,
he shall not be considered an executive employee beyond his Termination
Date and shall not be entitled to any Base Salary or Fringe Benefits after
such Termination Date other than his severance pay. Provided, however, if
Executive is entitled to severance pay pursuant to this Section 8, the
Company shall have the option to employ Executive in another executive
position with the Company during the period for which Executive is
entitled to severance pay. During such period, Executive shall be
required to perform such duties as are reasonably requested by the
Board in order to be entitled to severance pay. In such an instance
where Executive remains employed by the Company, he shall be considered
an executive employee who is entitled to the normal Fringe Benefits that
are provided to executive employees of the Company. Such severance pay
shall be paid in periodic installments that correspond to the Base Salary
payments that Executive would otherwise have received if his employment
had not been terminated. Provided, however, the Company at its sole
discretion may pay the entire amount of severance pay due Executive in one
or more lump sum payments.
9. Covenant against Competition.
a. Executive shall not, during the course of his employment by the
Company, directly or indirectly, in any manner or under any circumstance,
own, further invest in, participate in, manage, operate, organize,
allow the use of his or her name in connection with, or serve as an
Executive, contractor, advisor, or consultant to any person or legal
entity other than the Company that:
b. Has the primary objective of providing information which can be
used in the design, development, manufacture, use of and sale of high
speed data and video transfer technologies and related products for
use in transmission of data and video over Plain Old Telephone System
lines; or
ii. Does, or is reasonably expected to, generate material
earnings by providing such high speed data and video transfer technologies
and related products for use in transmission of data and video over
Plain Old Telephone System lines (such activities hereinafter
referred to as a "Similar Business").
b. For a period of twelve (12) months following the termination of
Executive's employment by the Company (the "Restricted Period"), and
regardless of the manner of such termination, Executive shall not,
in any part of the world, directly or indirectly and in any manner or
under any circumstances:
i. Own or engage in a Similar Business, whether for Executive's
own account or for the account of any other person or legal entity; or
ii. Enter the employ of, or render any services to, any business
unit area that is involved directly or indirectly in a Similar Business.
c. It shall not be a violation of this Agreement, for the Executive,
after termination of employment from the Company, to be employed or
engaged by a business, company or enterprise which has a business unit
area that is a "Similar Business" (as defined in Section 9.a. of this
agreement as long as the Executive is not directly employed or engaged by,
and does not provide information, assistance or advice to the "Similar
Business" unit area of the subsequent business, company, or enterprise.
That is, it is not a violation of this Agreement, for the Executive to
be employed or engaged by a subsequent employer with a "Similar Business"
unit area of the subsequent employer. Further, it shall not be a
violation of any provision of this Agreement for the Executive to have
an ownership interest in a "Similar Business" as a result of investments
made by a mutual fund, employee benefit program or other investment
vehicle as long as the Executive does not directly purchase equity,
shares of stock or other ownership interest in such a "Similar Business."
10. Covenant against Disclosure of Confidential Information.
As a condition of employment and continued employment, Executive will be
required to execute a Non-Disclosure Agreement. The terms of the
Non-Disclosure Agreement are incorporated herein by reference.
11. Nonsolicitation of Employees.
During the term of Executive's employment with the Company and for a
period of twelve (12) months from the voluntary or involuntary
termination of Executive's employment with the Company for any reason
whatsoever, Executive shall not, either on her or his own account or
for any person, firm, partnership, corporation, or other legal entity:
a. Solicit, interfere with, or endeavor to cause any
employee of the Company to leave his or her employment; or
b. Induce or attempt to induce any such employee to breach
her or his employment agreement with the Company.
12. Nonsolicitation of Customers. During the term of
Executive's employment with the Company and for a period of twenty four
(24) monthsfrom the voluntary or involuntary termination of Executive's
employmentwith the Company for any reason whatsoever, Executive shall not
solicit, induce, or attempt to induce any past or current customer of the
Company:
a. To cease doing business in whole or in part with or through
the Company;
or,
b. To do business with any other person, firm, partnership,
corporation, or other entity which performs services materially similar to
or competitive with those provided by the Company.
13. Ownership of Work Product: Inventions. To the extent
applicable to the services rendered by the Executive for the Company:
a. Executive acknowledges and agrees that the results of all work
performed by Executive for or on behalf of the Company, or in connection
therewith (the "Works"), are works made for hire, as that phrase is
defined in the Copyright Revision Act of 1976 (17 U.S.C. Section 101),
in that either (i) such Works are and will be prepared within the scope
of Executive's employment; or (ii) such Works have been and will be
specifically ordered or commissioned for use as a contribution to a
collective work r as a supplementary work. The Company shall therefore
be deemed to be the sole author and owner of any and all right, title,
and interest therein, including, without limitation, intellectual
property rights. To the extent that any such Works do not qualify for
any reason as works made for hire and to the extent that you may have
or acquire any right, title, or interest in such works, Executive
hereby assigns to the Company any and all such right, title, and
interest.
b. Executive agrees to make full and prompt disclosure to the Company
of any inventions or processes (as such terms are defined in 35
U.S.C.Section 100) made or conceived by Executive alone or with
others during the course of Executive's employment by the Company
(any such inventions or processes hereinafter referred to as the
"Inventions"), whether or not such Inventions are patentable or protected
as trade secrets and whetheror not such Inventions are made or conceived
during normal working hours or on the premises of the Company.
Notwithstanding such full andprompt disclosure, Executive agrees to assign,
as set forth in Section 13.a.above, shall not apply to any Inventions that
were conceived and developed without the use of the Company's equipment,
supplies, facilities, and tradesecret information and were developed
entirely on Executive's own time,unless (i) the Inventions relate directly
to the business of the Company or to the Company's actual or anticipated
research or development; or (ii) the Inventions result from any work
performed by you for the Company. In addition, Executive's agreement to
assign, as set forth in Section 13.a.above, shall not apply to Inventions
exempt from assignment under the applicable laws of the geographic base
area in which Executive performs services under this Agreement.
c. With respect to Inventions that are not assigned to the Company
pursuant to Section 13.b. above, Executive agrees that the Company shall
have, and hereby grants to the Company, a perpetual, worldwide, irrevocable,
royalty-free, fully paid-up, non-exclusive license to use for any and
all purposes and in any manner any such Inventions that are within the scope
of the Company's actual and anticipated business.
d. Executive agrees to execute and deliver such assignments, copyright
applications, patents, patent applications, licenses, and other documents
as the Company may direct and to cooperate fully with the Company, both
during and after the course of Executive's employment by the Company, to
enable the Company to secure and maintain in any and all countries the
rights described and granted in Sections 13.a. through 13.c. above with
respect to Works and Inventions.
e. Executive understands and agrees that the Company shall determine,
in its sole and absolute discretion, whether an application for patent,
copyright registration, or any other intellectual property right shall
be filed on any Works or Inventions assigned to the Company under this
Agreement and whether such an application shall be prosecuted or abandoned
prior to issuance or registration.
f. Executive represents that he or she is not now and will not as of
the date upon which Executive's employment hereunder commences be under
any obligation to any prior employer that is inconsistent with the terms
of this Agreement and that, to the best of Executive's knowledge, Executive
has no present obligation to assign to any former employer or to any other
non-Company Person, any work or invention covered by this Agreement.
14. Remedies.
The company shall have the right to all of the remedies otherwise
available to the Company, including, but not limited to, recovery from
Executive of damages and reasonable attorneys' fees incurred in the
enforcement of this Agreement. Additionally the Company shall have the
right to injunctive relief to restrain and enjoin any actual or threatened
breach of the provisions of Sections 9 through 13 of this Agreement. All
of the Company's remedies for breach of this Agreement shall be cumulative
and the pursuit of one remedy shall not be deemed to exclude any other
remedies.
15. Reasonableness of Restrictions.
Executive has carefully read and considered the provisions hereof and,
having done so, agrees that the restrictions set forth in this Agreement
(including, but not limited to, the time periods of restriction in each
of Sections 9 through 13 as set forth therein) are fair and reasonable
and are reasonably required for the protection of the interests of the
Company.
16. Separate Covenants.
This Agreement shall be deemed to consist of a series of separate covenants.
Should a determination be made by a court of competent jurisdiction that
the character, duration, or geographical scope of any provision of this
Agreement, specifically including, but not limited to, Sections 9 through
13, is unreasonable in light of the circumstances as they then exist, then
it is the intention and the agreement of the Company and Executive that
this Agreement shall be construed by the court in such a manner as to
impose only those restrictions on the conduct of Executive which are
reasonable in light of the circumstances as they then exist and as are
necessary to assure the Company of the intended benefit of this Agreement.
If, in any judicial proceeding, a court shall refuse to enforce all of
the separate covenants deemed included herein because, taken together,
they are more extensive than necessary to assure the Company of the intended
benefit of this Agreement, then it is expressly understood and agreed by
the Company and Executive that those of such covenants which, if eliminated,
would permit the remaining separate covenants to be enforced in such
proceeding, shall, for the purpose of such proceeding, be deemed eliminated
from the provisions hereof. In the event of a violation by Executive,
the term of each such covenant so violated shall be automatically
extended for a period of three (3) years from the date on which Executive
permanently ceases such violation of said covenants or for a period of
two (2) years from the date of the entry by a court of competent
jurisdiction of a final order or judgment enforcing such covenant,
whichever period is later.
17. Burden and Benefit.
This Agreement shall be binding upon, and shall inure to
the benefit of, the Company and Executive, and their respective
successors and assigns. The Company shall have the right to assign
its rights hereunder to any successor in interest, whether by merger,
consolidation, sale of assets, or otherwise. This Agreement shall not
be assignable by the Executive.
18. Choice of Law and Venue.
It is understood and agreed that construction and interpretation of this
agreement shall at all times and in all respects be governed by the internal
laws of the Commonwealth of Virginia, without giving affect to the conflict
of laws provisions thereof. The venue of any action brought to enforce
or relating to this agreement shall be brought exclusively in the Circuit
Court for Fairfax County, Virginia.
19. Notice.
For purposes of this Agreement, all notices and other communications
required or permitted hereunder shall be in writing and shall be deemed
to have been duly given: (i) when delivered personally; (ii) on the
business day following the day such notice or other communication is sent
by recognized overnight courier; (ii) when sent by facsimile transmission;
or (iv) if sent by certified or registered mail, postage prepaid, on the
date of actual receipt thereof. Such communications shall be addressed to
Chief Operating Officer at the Company's headquarters address (currently
0000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 20007), or to such other address
as either party may have furnished to the other in writing in accordance
herewith,except that notice of change of address shall be effective only
on the date of actual receipt thereof.
20. Entire Agreement.
This Agreement contains the entire agreement and understanding by
and between the Company and Executive with respect to the terms and
conditions of Executive's employment with the Company and covenants
contained herein, and no representations, promises, agreements, or
understandings, written or oral, not herein contained shall be of any
force or effect. This agreement replaces any prior written agreements
between the parties, and any prior written agreements between the parties
are no longer in effect. No change or modification hereof shall be valid
or binding unless the same is in writing and signed by the party against
whom such waiver is sought to be enforced. No valid waiver of any provision
of this Agreement at any time shall be deemed a waiver of any other
provision of this Agreement at such time or will be deemed a valid
waiver of such provision at any other time.
21. Survival; Binding Effect.
Executive understands and acknowledges that his or her obligations under
Sections 9 through 13 of this Agreement shall survive termination of
Executive's employment regardless of the manner of such termination and
shall be binding upon Executive's heirs, executors, administrators, legal
representatives, and assigns. Executive also understands and acknowledges
that this Agreement shall be binding upon and shall inure to the
benefit of the subsidiaries, affiliates, successors, and assigns of
the Company, including any person or other legal entity that acquires
all or substantially all of the assets of the Company,whether by merger,
consolidation, or otherwise.
22. Injunctive Relief.
Executive understands and acknowledges that damages for any breach of
Sections 9 through 13 of this Agreement hereunder will be difficult to
determine and inadequate to remedy the harm that may be caused and,
therefore, Executive consents that such Sections may be enforced by
temporary or permanent injunction. Such injunctive relief shall be in
addition to and not in lieu of any other remedies available to the Company
at law or in equity, including monetary damages and recovery of attorney's
fees and costs against Executive.
IN WITNESS WHEREOF, the Company and Executive have duly
executed this Agreement as of the day and year first written above.
/s/ Xxxxxx Xxxxxx
________________ DataMEG Corp.:
Xxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxxxx
_____________________________
Xxxxxx X. Xxxxxxxx
Co-Chairman of the Board
