EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is dated as of the 28th day of
January, 2000, and is by and between Fullcomm, Inc., a New Jersey corporation
with an office for purposes of this Agreement at 00 Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxx Xxxxxx 00000 (hereinafter the "Company" or "Employer"), and Xxxxxxx X. Case
with an address at 0000 Xxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 (hereinafter
the "Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Company wishes to retain the services of Employee to act as Chief
Executive Officer for and on its behalf in accordance with the following terms,
conditions and provisions; and
WHEREAS, Employee wishes to perform such services for and on behalf of the
Company, in accordance with the following terms, conditions and provisions.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained the parties hereto intending to be legally bound hereby agree
as follows:
1. EMPLOYMENT. Company hereby employs Employee and Employee accepts such
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employment and shall perform his duties and the responsibilities provided for
herein in accordance with the terms and conditions of this Agreement.
2. EMPLOYMENT STATUS. (a) Employee shall at all times be Company's employee
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subject to the terms and conditions of this Agreement subject, however, to the
Consulting Contingency referred to below.
(b) The parties acknowledge that the Company may, at any time, hire a
full-time Chief Executive Officer in which case Employee's status as an employee
shall cease upon the date when such full-time Chief Executive assumes his duties
and thereupon Xxxxxxx X. Case shall become a consultant to the Company for the
shorter of (i) one year or (ii) the expiry of the original term of employment
provided hereunder (the "Consulting Contingency"). During the term of his
consultancy, Xxxxxxx X. Case shall be entitled to receive a Consultant's fee of
$10,000 per month which shall be subject, however, to the same requirement of
$1,000,000 minimum financing referred to in Section 5.5 applicable to his
receipt of Base Salary with a similar accrual until such funds have been
received.
3. TERM. Unless earlier terminated pursuant to terms and provisions of this
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Agreement, this Agreement shall have a term (the "Term") of two (2) years
following the date hereof.
4. POSITION AND PHYSICAL PRESENCE.
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4.1. During Employee's employment hereunder, Employee shall serve as Chief
Executive Officer of the Company. In such position, Employee shall have the
customary powers, responsibilities and authorities of such position in
corporations of the size, type and nature of the Company including being
generally responsible for the day-to-day operations of Employer's business.
Employee shall perform such duties and exercise such powers commensurate with
his positions and responsibilities as shall be determined from time to time by
the Board of Directors of the Company (the "Board"). Neither Employee's title
nor any of his functions shall be changed, diminished or adversely affected
during the Term without his written consent. Employee shall be provided with an
office, staff and other working facilities at the executive offices of the
Company consistent with his position and as required for the performance of his
duties.
4.2. The Company acknowledges that Employee currently resides in Castle
Rock, Colorado whereas the Company will be headquartered in Princeton, New
Jersey. Employee shall be required to spend at least five (5) days per calendar
month present at the Company's Princeton site, and Employee's reimbursement
right for travel expense shall be subject to the overall limitation on expense
reimbursement set forth in Section 6.3. Employee agrees to devote all time
reasonably necessary to fulfill his duties hereunder, which in no event shall be
less than sixty (60) hours per month. During the continuance of his consultancy,
Xxxxxxx X. Case as consultant shall make himself available for consultation but
shall not be responsible for day to clay operations of the Company.
5. COMPENSATION. For the performance of all of Employee's services to be
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rendered pursuant to the terms of this Agreement, Company will pay and Employee
will accept the following compensation:
5.1. (a) During the Term, Company shall pay the Employee an initial base
monthly salary of $10,000 (the "Base Salary") payable in bi-monthly
installments, and such Base Salary shall not be decreased during the Term.
Employee's Base Salary, as in effect from time to time, is hereinafter referred
to as the "Employee's Base Salary."
(b) Employee shall, immediately upon effectiveness of the Merger,
under the Merger Agreement and Plan of Merger below receive 175,000 options to
purchase common stock of the Company at $0.10 per share which shall be
exercisable with respect to Contessa Corporation common stock post-merger as if
such option had been exercised prior to the Merger. Such option shall also
provide for (i) "piggyback" registration rights from the date of the Merger to
the date one (1) year following the last issuance under the Grace Private
Placement (as such
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term is defined in the Merger Agreement and Plan of Merger dated the date hereof
among Contessa Corporation, the Company, and Fullcomm Acquisition Corp.) and a
"pro rata" right of participation for shareholders other than Messrs. Xxxxxxx,
Xxx and Xxxxxxxxxx and (ii) demand registration rights with usual and customary
terms and conditions which shall be effective from the expiration of the
"piggyback" rights referred to above and continue for a period of one year.
5.2. Employee shall be eligible to participate in any Incentive Stock
Option Plan as may be established by the Board on the terms and conditions
generally applicable to such ISO plan participants.
5.3 At the sole discretion of the Board, Employee shall be entitled to
participate in any bonus programs established by the Board for employees of the
Company.
5.4. Company shall deduct and withhold from Employee's compensation all
necessary or required taxes, including but not limited to Social Security,
withholding and otherwise, and any other applicable amounts required by law or
any taxing authority.
5.5. Employee acknowledges and agrees that the Company is currently a
development stage company without actual products or revenues, and accordingly,
it is in the mutual interest of both parties to defer receipt of Base Salary
until such time as the Company shall have received not less than $1,000,000 in
gross proceeds from the private placement to be undertaken by X.X Xxxxx and
Company. Any amounts so deferred shall accrue until the Company's receipt of
such funds.
6. Employee Benefits.
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During the Term hereof and so long as Employee is not terminated nor
operating under the Consulting Contingency:
6.1 Employee shall receive and be provided health, dental and life
insurance, and during Employee's employment hereunder, in the sole and absolute
discretion of the Board, such other employee benefits including, without
limitation, fringe benefits, vacation, automobile, retirement plan participation
and life, health, accident and disability insurance, etc. (collectively,
"Employee Benefits"). The parties acknowledge that the benefits to be provided
pursuant to this Section shall commence as soon as practicable following the
date hereof, but in any case within six months following the date hereof.
6.2. Employee shall be entitled to receive four (4) weeks paid vacation per
year. If such vacation time is not taken by Employee in the then current year,
Employee at his option may accrue vacation or receive compensation in lieu
thereof at one-half the then current level of Employee's Base Salary.
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6.3. Reasonable travel, entertainment and other business expenses actually
incurred by Employee in the performance of his duties hereunder shall be
reimbursed upon the submission of supporting documentation by Employee to the
Company. It is understood and agreed that the Board shall be required to approve
the reimbursement of all expenses incurred by Employee in excess of $5,000 in
the aggregate for any year.
7. Termination.
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7.1. For Cause or Without Cause by the Company. Employee's employment
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hereunder, or the consultancy referred to herein, may be terminated by the
Company at any time with or without cause upon thirty (30) days prior written
notice. Any termination of Employee's employment pursuant to this Section 7.1
shall be made by the Board. If Employee is terminated, he shall be entitled to
receive Employee's Base Salary from Company through the date of termination.
Employee shall be entitled to no other payments of Employee's Base Salary under
this Agreement. All other benefits, if any, due Employee following Employee's
termination of employment shall be determined in accordance with the plans,
policies and practices of the Company.
7.2. Disability or Death. (i) Employee's employment, or consultancy,
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hereunder shall terminate upon his death or if Employee becomes physically or
mentally incapacitated and is therefore unable (or will, as a result thereof, be
unable) to perform his duties for a period of nine (9) consecutive months or for
an aggregate of fifteen (15) months in any twenty-four (24) consecutive month
period (such incapacity is hereinafter referred to as "Disability"). If Company
terminates Employee's employment under the terms of this Agreement and Employee
does not receive disability insurance payments under the terms hereof in an
amount at least equal to the then effective Employee's Base Salary pursuant to a
policy maintained and paid for by the Company, Company shall be responsible to
continue to pay Employee's Base Salary during the then remaining Term to the
extent required to bring the Employee's annual compensation (together with
disability payments) up to the amount equal to the Employee's Base Salary
immediately prior to the termination for disability. Any question as to the
existence of the Disability of Employee as to which Employee and the Company
cannot agree shall be determined in writing by a qualified independent physician
mutually acceptable to Employee and the Company. If Employee and the Company
cannot agree as to a qualified independent physician, each shall appoint such a
physician and those two physicians shall select a third who shall make such
determination in writing. The determination of Disability made in writing to the
Company and Employee shall be final and conclusive for all purposes of the
Agreement.
7.2.1. Upon termination of Employee's employment hereunder during
the Term as a result of death, Employee's estate or named
beneficiary(ies) shall receive from the Company (x) Employee's Base
Salary at the rate in effect at the time of Employee's death through the
end of the month in which his death and (y) the proceeds of any life
insurance policy maintained for his benefit by the Company pursuant to
this Agreement (or the Plans and Policies of the Company generally).
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7.2.2. All other benefits, if any, due Employee following
Employee's termination of employment pursuant to this Subsection 7.2.2
shall be determined in accordance with the plans, policies and practices
of the Company.
7.3. Change in Control Payment.
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7.3.1. If there is a Change of Control of the Company, Employee shall be
entitled to receive the difference between those monies he actually received
upon such termination and 2.99 times Employee's base amount as defined in
Section 280G(b)(3) of the Internal Revenue code of 1986, as amended (the "Code")
(the "Employee Base Amount").
7.3.2. Subject to Section 7.6, if Employee's employment is terminated by
the Company and coincident with or following a Change of Control, Employee
shall, but Xxxxxxx X. Case as consultant shall not, be entitled to a lump sum
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payment, payable within ten (10) days after such termination of employment,
equal to the product of (x) 2.99 times (y) the Employee Base Amount.
7.4. Termination by Employee. If Employee terminates his employment with
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the Company for any reason during the term, Employee shall be entitled to the
same payments he would have received if his employment had terminated by the
Company.
7.5 Change of Control defined. For purposes of this Agreement, "Change of
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Control" shall mean (i) any transaction or series of transactions (including,
without limitation, a tender offer, merger or consolidation) the result of which
is that any "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), becomes the "beneficial" owners (as defined in Rule 13(d)(3) under the
Securities Exchange Act of 1934) of more than 50 percent (50%) of the total
aggregate voting power of all classes of the voting stock of the Company and/or
warrants or options to acquire such voting stock, calculated on a fully diluted
basis, (ii) during any period of two consecutive calendar years, individuals who
at the beginning of such period constituted the Board of Directors (together
with any new directors whose election by the Board of Directors or whose
nomination for election by the Company's stockholders was approved by a vote of
at least two-thirds of the directors then still in office who either were
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the directors then in office, or (iii) a sale of assets constituting
all or substantially all of the assets of the Company (determined on a
consolidated basis). In the event of such Change of Control, the new entity
shall be obligated to assume the terms and conditions of this Agreement.
7.6. Limitation on Certain Payments.
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7.6.1. In the event it is determined pursuant to Section 7.6.2 below, that
part or all of the consideration, compensation or benefits to be paid to
Employee under this Agreement
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in connection with Employee's termination of employment following a Change of
Control or under any other plan, arrangement or agreement in connection
therewith, constitutes a "parachute payment" (or payments) under Section
280G(b)(2) of the Code, then, of the aggregate present value of such parachute
payments (the "Parachute Amount") exceeds 2.99 times the Employee Base Amount,
the amounts constituting "parachute payments" which would otherwise be payable
to or for the benefit of Employee shall be reduced to the extent necessary such
that the Parachute Amount is equal to 2.99 times the Employee Base Amount.
Employee shall have the right to choose which amounts that would otherwise be
due him but for the limitations described in this paragraph shall be subject to
reduction. Notwithstanding the foregoing, if it is determined that stockholder
approval of the payment of such compensation and benefits will reduce the
applicability of Section 280G of the Code to such payment, promptly after
request by Employee, Company will undertake reasonable efforts to hold such a
meeting to obtain such approval or to solicit such approval by written consent,
and to obtain such approval.
7.6.2. Any determination that a payment constitutes a parachute payment and
any calculation described in this Section 7.6 ("determination") shall be made by
the independent public accountants for the Company, and may, at Company's
election, be made prior to termination of Employee's employment where Company
determines that a Change in Control, as provided in this Section 7, is imminent.
Such determination shall be furnished in writing no later than thirty (30) days
following the date of the Change in Control by the accountants to Employee. If
Employee does not agree with such determination from the accountants and within
Fifteen (15) days thereafter, accountants of Employee's choice must deliver to
the Company their determination that in their judgment complies with the Code.
If the two accountants cannot agree upon the amount to be paid to Employee
pursuant to this Section 7 within ten (10) days of the delivery of the statement
of Employee's accountants to the Company, the two accountants shall choose a
third accountant who shall deliver their determination of the appropriate amount
to be paid to Employee pursuant to this Section 7.6, which determination shall
be final. If the final determination provides for the payment of a greater
amount than that proposed by the accountants of the Company, then the Company
shall pay all of Employee's costs incurred in contesting such determination and
all other costs incurred by the Company with respect to such determination.
7.6.3. If the final determination made pursuant to Subsection 7.6.2 of this
Section 7.6 results in a reduction of the payments that would otherwise be paid
to Employee except for the application of Section 7.6.1 of this Section 7.6,
Employee may then elect, in his sole discretion, which and how much of any
particular entitlement shall be eliminated or reduced and shall advise the
Company in writing of his election within ten (10) days of the final
determination of the reduction in payments. If no such election is made by
Employee within such 10-day period, the Company may elect which and how much of
any entitlement shall be eliminated or reduced and shall notify Employee
promptly of such election. Within ten (10) days following such determination and
the elections hereunder, the Company shall pay to or distribute to or for the
benefit of Employee such amounts as become due to Employee under this agreement.
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7.6.4. As a result of the uncertainty in the application of Section 280G of
the Code at the time of a determination hereunder, it is possible that payments
will be made by the Company which should not have been made under Subsection
7.6.1 of this Section 7.6 ("Overpayment") or that additional payments which are
not made by the Company pursuant to Subsection 7.6.1 of this Section 7.6 should
have been made ("Underpayment"). In the event that there is a final
determination by the Internal Revenue Service, or a final determination by a
court of competent jurisdiction, that an Overpayment has been made, any such
Overpayment shall be treated for all purposes as a loan to Employee which
Employee shall repay to the Company together with interest at the applicable
Federal rate provided for in Section 7872(f)(2) of the Code. In the event that
there is a final determination by the Internal Revenue Service, a final
determination by a court of competent jurisdiction or a change in the provisions
of the Code or regulations pursuant to which an Underpayment arises under this
Agreement, any such Underpayment shall be promptly paid by the Company to or for
the benefit of Employee, together with interest at the applicable Federal rate
provided for in Section 7872(f)(2) of the code.
8. NON-DISCLOSURE OF INFORMATION.
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8.1. Employee acknowledges that by virtue of his position he will be privy
to the Company's confidential information and trade secrets, as they may exist
from time to time, and that such confidential information and trade secrets may
constitute valuable, special, and unique assets of the Company (hereinafter
collectively "Confidential Information"). Accordingly, Employee shall not,
during the Term and for a period of five (5) years thereafter, intentionally
disclose all or any part of the Confidential Information to any person, firm,
corporation, association or any other entity for any reason or purpose
whatsoever, nor shall Employee and any other person by, through or with
Employee, during the term and for a period of five (5) years thereafter,
intentionally make use of any of the Confidential Information for any purpose or
for the benefit of any other person or entity, other than Company, under any
circumstances.
8.2. Company and Employee agree that a violation of the foregoing covenants
will cause irreparable injury to the Company, and that in the event of a breach
or threatened breach by Employee of the provisions of this Section 8, Company
shall be entitled to an injunction restraining Employee from disclosing, in
whole or in part, any Confidential Information, or from rendering any services
to any person, firm, corporation, association or other entity to whom any such
information, in whole or in part, has been disclosed or is threatened to be
disclosed in violation of this Agreement. Nothing herein stated shall be
construed as prohibiting the Company from pursuing any other rights and
remedies, at law or in equity, available to the Company for such breach or
threatened breach, including the recovery of damages from the Employee. In
connection with this paragraph's provisions, Employee hereby (i) submits to the
jurisdiction of any federal court in New Jersey or any New Jersey state court of
general jurisdiction in the county in which Princeton is located, (ii) waives
any and all defenses based on inconvenient forum, and (iii) agrees to pay the
reasonable fees and disbursements of the Company's legal counsel in connection
with obtaining any such injunctive relief.
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8.3. Notwithstanding anything contained in this Section 8 to the contrary,
"Confidential Information" shall not include (i) information in the public
domain as of the date hereof, (ii) information which enters the public domain
hereafter through no fault of the Employee, (iii) information created,
discovered or developed by the Employee independent of his association with the
Company, provided that such information is supported by accompanying
documentation of such independent development. Nothing contained in this Section
8 shall be deemed to preclude the proper use by the Employee of Confidential
Information in the exercise of his duties hereunder or the disclosure of
Confidential Information required by law. The provisions of Section 8.1, 8.2 and
8.3 shall also apply to Xxxxxxx X. Case, as consultant.
9. RESTRICTIVE COVENANT.
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9.1. During the term hereof and for a period of one (1) year after the
termination of this Agreement, Employee, and Xxxxxxx X. Case as consultant,
covenants and agrees that he shall not own, manage, operate, control, be
employed by, participate in, or be connected in any manner with the ownership,
management, operation, or control, whether directly or indirectly, as an
individual on his own account, or as a partner, member, joint venturer, officer,
director or shareholder of a corporation or other entity, of any business which
competes with the business conducted by Company at the time of the termination
or expiration of this Agreement. Notwithstanding the foregoing, (i) nothing in
this Section 9 shall prohibit Employee, and Xxxxxxx X. Case as consultant, from
owning up to 5% of the outstanding voting capital stock of any corporation or
other entity listed on Nasdaq or traded on any national securities exchange, and
(ii) in the event of a termination by the Company, such restriction shall apply
only if the Company has paid to the Employee all amounts required and is
otherwise in compliance with Section 7 hereof. The foregoing shall not preclude
the Employee or any affiliate thereof from any consulting arrangement which may
be entered into from time to time with the Company, or any of its affiliates.
9.2. Employee, and Xxxxxxx X. Case as consultant, acknowledges that the
restrictions contained in this Section 9 are reasonable. In that regard, it is
the intention of the parties to this Agreement that the provisions of this
Section 9 shall be enforced to the fullest extent permissible under the law and
public policy applied in each jurisdiction in which enforcement is sought.
Accordingly, if any portion of this Section 9 shall be adjudicated or deemed to
be invalid or unenforceable, the remaining portions shall remain in full force
and effect, and such invalid or unenforceable portion shall be limited to the
particular jurisdiction in which such adjudication is made.
10. BREACH OR THREATENED BREACH OF COVENANTS. In the event of Employee's
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actual or threatened breach of his obligations under either Paragraph 8 or 9, or
both, of this Agreement, or Company's breach or threatened breach of its
obligations under this Agreement, in addition to any other remedies either party
may have, such party shall be entitled to obtain a temporary restraining order
and a preliminary and/or permanent injunction restraining the other from
violating these provisions. Nothing in this Agreement shall be construed to
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prohibit Company or Employee, as the case may be, from pursuing and obtaining
any other available remedies which Company or Employee, as the case may be, may
have for such breach or threatened breach, whether at law or in equity,
including the recovery of damages from the other. The foregoing provisions of
this Section shall also apply to Xxxxxxx X. Case as consultant.
11. DISCLOSURE OF INNOVATIONS. The Employee hereby agrees to disclose in
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writing to the Company all inventions, improvements and other innovations of any
kind that the Employee makes, conceives, develops or reduces to practice, alone
or jointly with others, during the Term, to the extent they are related to the
Employee's work for the Company and whether or not they are eligible for patent,
copyright, trademark, trade secret or other legal protection ("Innovations").
Examples of Innovations shall include, but are not limited to, discoveries,
research, inventions, formulas, techniques, processes, tools, know-how,
marketing plans, new product plans, production processes, advertising, packaging
and marketing techniques. The foregoing provisions of this Section shall also
apply to Xxxxxxx X. Case as consultant.
12. ASSIGNMENT OF OWNERSHIP OF INNOVATIONS. The Employee hereby agrees that
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all Innovations will be the sole and exclusive property of the Company and the
Employee hereby assigns all of his rights, title or interest in the Innovations
and in all related patents, copyrights, trademarks, trade secrets, rights of
priority and other proprietary rights to the Company to the extent they are
related to the Employee's work for the Company. At the Company's request and
expense, during and after the Term, the Employee will assist and cooperate with
the Company in all respects and will execute documents, and, subject to his
reasonable availability, give testimony and take further acts requested by the
Company to obtain, maintain, perfect and enforce for the Company patent,
copyright, trademark, trade secret and other legal protection for the
Innovations. The Employee hereby appoints the President of the Company as his
attorney-in-fact to execute documents on his behalf for this purpose. The
foregoing provisions of this Section shall also apply to Xxxxxxx X. Case as
consultant.
13. REPRESENTATIONS AND WARRANTIES BY EMPLOYEE. Employee hereby warrants
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and represents that he is not subject to or a party to any restrictive covenants
or other agreements that in any way preclude, restrict, restrain or limit him
(a) from being an Employee of Company, (b) from engaging in the business of
Company in any capacity, directly or indirectly, and (c) from competing with any
other persons, companies, businesses or entities engaged in the business of
Company. The foregoing representation and warranty shall also be deemed to have
been made by Xxxxxxx X. Case during the continuance of the his consultancy.
14. ARBITRATION. Other than with respect to a proceeding for injunctive
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relief referred to herein, any controversy or claim arising out of or relating
to this Agreement, the performance thereof or its breach or threatened breach
shall be settled by arbitration in Princeton, New Jersey or other mutually
acceptable place in accordance with the then governing rules of the American
Arbitration Association. The finding of the arbitration panel or arbitrator
shall be final and binding upon the parties with the costs of arbitration to be
equally borne by the plaintiffs and
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the defendants, i.e. the costs borne by defendant side in the arbitration,
whether single or multiple, shall equal the costs borne by the plaintiff side in
the arbitration, whether single or multiple. Judgment upon any arbitration award
rendered may be entered and enforced in any court of competent jurisdiction. In
no event may the arbitration determination change Employee's compensation,
title, duties or responsibilities, the entity to whom Employee reports or the
principal place where Employee is to render his services.
15. NOTICES. Any notice required, permitted or desired to be given under
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this Agreement shall be sufficient if it is in writing and (a) personally
delivered to Employee or an authorized member of Company, (b) sent by overnight
delivery or (c) sent by registered or certified mail, return receipt requested,
to Employer's or Employee's address as provided in this Agreement or to a
different address designated in writing by either party. In all instances of
notices to be given to Company, a copy by like means shall be delivered to
Company's counsel care of Xxxxxxxx Xxxxxxxxx Professional Corporation, 000
Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxx X. Xxxxx, Esq.
In all instances of notices to be given to Employee, a copy by like means shall
be delivered to Employee's counsel at the address supplied by the Employee.
Notice is deemed given on the day it is delivered personally or by overnight
delivery, or five (5) business days after it is mailed, if transmitted by the
United States Post Office.
16. ASSIGNMENT. Employee acknowledges that his services are unique and
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personal. Accordingly, Employee may not assign his rights or delegate his duties
or obligations under this Agreement. Company's rights and obligations under this
Agreement shall inure to the benefit of and shall be binding upon the Company's
successors and assigns. Company has the absolute right to assign its rights and
benefits under the terms of this Agreement.
17. WAIVER OF BREACH. Any waiver of a breach of a provision of this
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Agreement, or any delay or failure to exercise a right under a provision of this
Agreement, by either party, shall not operate or be construed as a waiver of
that or any other subsequent breach or right.
18. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
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parties. It may not be changed orally but only by an agreement in writing which
is signed by the parties. The parties hereto agree that any existing employment
agreement between them shall terminate as of the date of this Agreement.
19. GOVERNING LAW. This Agreement shall be construed in accordance with and
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governed by the internal laws of the State of New Jersey.
20. SEVERABILITY. The invalidity or non-enforceability of any provision of
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this Agreement or application thereof shall not affect the remaining valid and
enforceable provisions of this Agreement or application thereof.
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21. CAPTIONS. Captions in this Agreement are inserted only as a matter of
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convenience and reference and shall not be used to interpret or construe any
provisions of this Agreement.
22. GRAMMATICAL USAGE. In construing or interpreting this Agreement,
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masculine usage shall be substituted for those feminine in form and vice versa,
and plural usage shall be substituted or singular and vice versa, in any place
in which the context so requires.
23. CAPACITY. Employee has read and is familiar with all of the terms and
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conditions of this Agreement and has the capacity to understand such terms and
conditions hereof. By executing this Agreement, Employee, Xxxxxxx X. Case as
consultant, agrees to be bound by this Agreement and the terms and conditions
hereof.
24. COUNTERPARTS. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same Agreement. Delivery of signed
counterparts via facsimile transmission shall be effective as manual delivery
thereof.
25. CONFLICT OF INTEREST. In any matter requiring a Board determination
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hereunder, Employee, who, it is contemplated, will be a Director, shall be
counted for purposes of determining a quorum but shall recuse himself from the
Board vote on the matter being determined. Employee may be present in order to
give a presentation on the matter being determined, but shall otherwise be
absent during the course of the Board's deliberation. The foregoing provision
shall, if applicable, be given effect should Xxxxxxx X. Case continue his
directorship during his consultancy.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first herein above written.
FULLCOMM, INC.
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxxx, President
EMPLOYEE
/s/ Xxxxxxx X. Case
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Xxxxxxx X. Case
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