EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of May 21, 2001, by and between
XXXXXX XXXXXX, LTD., a Delaware corporation with offices at 00-00 Xxxxxxx
Xxxxxx, Xxxx Xxxxxx Xxxx, X.X. 00000 (the "Corporation"), and XXXXXXXX XXXXXX,
an individual residing at 000 Xxxxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx, 00000
("Executive").
WITNESSETH:
WHEREAS, subject to the terms and considerations hereinafter
set forth, the Corporation wishes to employ Executive in the positions set forth
herein and Executive wishes to accept such employment.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual promises, terms, provisions and conditions set forth in this
Agreement, the parties hereby agree as follows:
Section 1. EMPLOYMENT. The Corporation hereby employs Executive and
Executive hereby accepts such employment, as an executive of the Corporation,
subject to the terms and conditions set forth in this Agreement.
Section 2. DUTIES. Executive shall serve as Chief Executive Officer
and Vice Chairman of the Corporation's Board of Directors (the "Board of
Directors") and shall properly perform such duties as may be assigned to him
from time to time by the Office of the Chair (or, if no Office of the Chair
exists, by the Board of Directors). If requested by the Office of the Chair (or,
if no Office of the Chair exists, by the Board of Directors), Executive shall
serve on any committee of the Board of Directors without additional
compensation. During the Term of this Agreement, Executive shall devote
substantially all of his business time and efforts to the performance of his
duties hereunder unless otherwise authorized by the Board of Directors.
Executive shall not engage in any other significant business activity that would
detract from his ability to perform services to the Corporation.
Section 3. TERM OF EMPLOYMENT. The term of Executive's employment,
unless sooner terminated as provided herein, shall be for a period of three (3)
years commencing July 1, 2001 and ending on June 30, 2004 (as may be extended
from time to time, the "Term"). The Term shall be automatically extended for
successive one year periods thereafter unless the Corporation notifies Executive
in writing of its intention not to so extend the Term at least three (3) months
prior to the end of the original or any extended Term.
Section 4. COMPENSATION OF EXECUTIVE.
4.1 BASE SALARY. Corporation shall pay to Executive an
annual base salary for his services hereunder of Three Hundred Seventy Five
Thousand Dollars ($375,000), less such deductions as shall be required to be
withheld by applicable law and regulations. On each July 1st during the Term
(commencing on July 1, 2002), Executive shall be entitled to receive a 10%
increase in his base salary if the Corporation's net income (as reported by the
Corporation in its quarterly and annual reports filed with the Securities
Exchange Commission) (the "Net Income") for the four (4) calendar quarters
ending on the most recent June 30th is greater than the Net Income for the four
(4) calendar quarters ending on the preceding June 30th. Executive's base
salary, as in effect at any time, is hereinafter referred to as the "Base
Salary."
4.2 TIME OF PAYMENT. Executive's Base Salary shall be paid
in substantially equal installments on a basis consistent with the Corporation's
payroll practices for senior executives. The Corporation shall determine whether
Executive is entitled to an increase in Base Salary pursuant to Section 4.1
above as promptly as practicable after each June 30th during the Term and any
such increase shall be paid retroactively to July 1st of such year.
4.3 ANNUAL BONUS. The Corporation shall pay Executive a
$100,000 cash bonus for fiscal year 2001, which bonus shall be paid no later
than April 15, 2002 and pro-rated for the actual number of months in fiscal year
2001 that Executive is employed under this Agreement. For each fiscal year that
occurs during the Term (other than fiscal year 2001), the Corporation shall pay
Executive a cash bonus in an amount determined by the Board of Directors, which
amount shall be not less than four percent (4%) of the increase in the
Corporation's earnings before interest, tax, depreciation and amortization
("EBITDA") for such fiscal year over the EBITDA of the prior fiscal year (the
"Cash Bonus"). The determination of EBITDA for any fiscal year shall give effect
to all bonuses (including the bonus provided for in this Section 4.3) accrued or
payable for such fiscal year to Executive and all other employees of the
Corporation. Executive's Cash Bonus for any fiscal year shall be based on
audited financial statements of the Corporation for such fiscal year and shall
be paid to Executive no later than April 15 of the year immediately following
such fiscal year.
4.4 INITIAL STOCK OPTION GRANT. The Corporation agrees that,
on the date of the Corporation's next annual meeting, Executive shall be granted
options to acquire 100,000 shares of common stock of the Corporation (the
"Initial Options"). The grant of the Initial Options is conditioned upon
approval by the Corporation's stockholders of the Amendment of the Corporation's
1999 Stock Plan. The Initial Options (i) shall be granted pursuant to the
Corporation's 1999 Stock Plan, (ii) shall vest quarterly over one year from the
date of grant and (iii) shall be exercisable after vesting at an exercise price
equal to the closing market price on the trading day immediately prior to the
Corporation's next annual meeting for the five year period following the date of
grant, provided, however, that if Executive ceases to be either an employee or
director of the Corporation, the exercise period shall be shortened in
accordance with the Corporation's 1999 Stock Plan.
4.5 INITIAL STOCK GRANT. On the date of the Corporation's
next annual meeting, the Corporation shall grant Executive 10,000 shares of
restricted common stock (the "Restricted Shares"). The restrictions on twenty
five percent (25%) of the Restricted Shares shall lapse, and such Restricted
Shares shall become unrestricted, at the end of each of the four full calendar
quarters following the date of the Corporation's next annual meeting. In the
event Executive ceases to be either an employee or director of the Corporation,
the ownership of any Restricted Shares granted pursuant to this Section 4.5 that
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have not become unrestricted prior to the date that Executive ceases to be
either an employee or director of the Corporation shall revert to the
Corporation.
4.6 ANNUAL STOCK OPTION GRANT. Subject to the approval by
the Corporation's stockholders of the Amendment of the Corporation's 1999 Stock
Plan (the "1999 Plan") and subject to availability of shares under such 1999
Plan or any other qualified or non-qualified stock incentive plan designated by
the Board of Directors and approved by the stockholders, on or about the date of
the Corporation's annual meeting (but not later than June 30th) for each year of
the Term (beginning in 2002) (each, a "Grant Date"), Executive shall be granted
an option ("Annual Option") to purchase a number of shares of common stock of
the Corporation equal to the dollar amount of the Cash Bonus Executive received
for the previous fiscal year, provided, however, that in no event shall the
number of shares subject to any Annual Option be greater than 100,000. The
Annual Options granted pursuant to this Agreement shall be granted pursuant to
the Corporation's 1999 Stock Plan or any other qualified or non-qualified stock
incentive plan designated by the Board of Directors, which other plan has been
approved by the stockholders of the Corporation. The Annual Options shall vest
quarterly over the one year period following the Grant Date and shall be
exercisable after vesting at a price equal to the closing price of the common
stock of the Corporation on the Grant Date for a period of five years from the
Grant Date, provided, however, that if Executive ceases to be either an employee
or director of the Corporation, the exercise period shall be shortened in
accordance with the stock plan under which the Annual Option was granted.
4.7 EXPENSES. During the Term, the Corporation shall
promptly reimburse Executive for all reasonable and necessary travel expenses
and other disbursements incurred by Executive on behalf of the Corporation in
performance of Executive's duties hereunder, assuming Executive has received
prior approval for such travel expenses and disbursements by the Corporation to
the extent possible, consistent with corporate practice with respect to the
reimbursement of expenses incurred by the Corporation's senior executives.
4.8 AUTOMOBILE ALLOWANCE. The Corporation shall, at the
direction of Executive, either reimburse Executive for, or directly pay the
costs of, Executive's use of an automobile in connection with the performance of
his duties hereunder during the Term of this Agreement and all usual
expenditures in connection therewith; i.e., fuel, insurance, parking, customary
maintenance and repairs, etc., provided, however, that expenses either
reimbursed or paid pursuant to this Section shall not exceed Ten Thousand
Dollars ($10,000) for any year.
4.9 BENEFITS. During the Term, Executive shall be entitled
to participate in such pension, profit sharing, group insurance, option plans,
hospitalization, and group health and benefit plans and all other benefits and
plans as the Corporation provides to its senior executives.
4.10 DEFERRAL OF COMPENSATION. Notwithstanding anything to
the contrary in this Agreement, any remuneration under this Agreement or any
other agreements to which the Corporation and Executive are parties in respect
of employment that is not deductible for any taxable year of the Corporation
because of Section 162(m) of the Internal Revenue Code of 1986, as amended (the
"Code") will be deferred until the first day that any excess remuneration
becomes deductible under Section 162(m) or by virtue of its repeal or amendment.
Any such deferred payment will bear interest at the prime rate plus one
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beginning with the date such payment is first deferred. Notwithstanding any
provision in this Agreement to the contrary, this Section 4.10 shall survive the
termination of this Agreement.
4.11 LOANS TO EXECUTIVE. From time to time during the Term,
at Executive's request, Executive may borrow funds from the Corporation,
provided, that, at any time the aggregate amount of any such borrowings shall
not exceed the amount of Executive's remuneration that has been deferred
pursuant to Section 4.10. Executive shall be required to pay interest on such
borrowings at a rate equal to the prime rate plus one and such borrowings will
be subject to any additional terms and conditions as reasonably determined by
the Board of Directors.
Section 5. TERMINATION.
5.1 DEATH OR TOTAL DISABILITY.
(a) Death. This Agreement shall terminate upon the
death of Executive; provided, however, that the Corporation shall continue to
pay to the estate of Executive the Base Salary as set forth in Section 4.1
hereof for the twelve (12) month period immediately subsequent to the date of
Executive's death.
(b) Total Disability. In the event Executive is
discharged due to a "Total Disability" (as defined in Section 6.1 below), then
this Agreement shall be deemed terminated and the Corporation shall be released
from all obligations to Executive with respect to this Agreement, except
obligations accrued prior to such termination and as provided in Section 6.2
hereof.
5.2 TERMINATION FOR CAUSE; EXECUTIVE'S RESIGNATION. In the
event Executive is discharged "For Cause" (as defined below) or in the event
Executive resigns (other than pursuant to Section 5.5 hereof), then upon such
occurrence, this Agreement shall be deemed terminated and the Corporation shall
be released from all obligations to Executive with respect to this Agreement,
except obligations accrued prior to such termination.
5.3 TERMINATION OTHER THAN FOR CAUSE. In the event (i)
Executive is discharged other than "For Cause" or due to his death or "Total
Disability," or (ii) the Corporation notifies Executive that the Corporation has
elected to not extend the Term of this Agreement as provided in Section 3, then
the Corporation shall pay the following amount to Executive: the product of (i)
Executive's Base Salary on the date of such termination (or, in the case of a
non-extension, the date on which the Term of this Agreement would expire after
such non-extension) plus the Cash Bonus paid (or payable) to Executive for the
fiscal year ending on the December 31 immediately preceding the date of such
termination (or, in the case of a non-extension, the date on which the Term of
this Agreement would expire after such non-extension) (if such immediately
preceding fiscal year is 2001, plus $100,000) multiplied by (ii) the greater of
(A) the number of years (and fractions of years) remaining on the Term or (B)
two. Such amount shall be paid over a two year period from the date of
termination (or, in the case of a non-extension, from the date on which the Term
of this Agreement would expire after such non-extension) in substantially equal
installments on a basis consistent with the payroll schedule applied to
Executive during the Term of this Agreement. Notwithstanding anything to the
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contrary herein, the Corporation will have no obligation to make any payments to
Executive in connection with the Corporation's election not to extend the Term
beyond Executive's 60th birthday.
5.4 "FOR CAUSE". As used herein, the term "For Cause" shall
mean:
(a) the conviction of, or pleading guilty or nolo
contendere to, any crime, whether or not involving the Corporation,
constituting a felony in the jurisdiction involved, which the Board of
Directors, in its sole discretion, determines may have an injurious
effect on the Corporation;
(b) the conviction of any crime involving moral
turpitude; or
(c) gross negligence or willful misconduct in the
conduct of Executive's duties or willful or repeated failure or refusal
to perform such duties as may be delegated to Executive by the Office
of the Chair (or, if no Office of the Chair exists, by the Board of
Directors) which are consistent with Executive's position, and that as
to any conduct concerning this subsection (c), such conduct is not
corrected by Executive within fourteen (14) days following receipt by
Executive of written notice from the Office of the Chair (or, if no
Office of the Chair exists, from the Board of Directors), such notice
to state with specificity the nature of the breach, failure or refusal,
gross negligence or willful misconduct related to Executive's
employment with the Corporation.
5.5 TERMINATION UPON CHANGE OF CONTROL.
(a) If, during the period commencing 120 days prior to
a Change of Control and ending on the first anniversary of a Change of
Control, Executive's employment shall have been terminated by the
Corporation (other than For Cause) or by Executive for Good Reason:
(i) all unvested options to acquire stock of the
Corporation held by Executive shall vest on the date of
termination;
(ii) the Corporation shall make a lump sum cash
payment to Executive within ten (10) days of the date of
termination in an amount equal to (i) the amount of
compensation that is accrued and unpaid through the date of
termination pursuant to Section 4 of this Agreement and (ii)
three (3) times the total compensation received by Executive
pursuant to Sections 4.1 and 4.3 of this Agreement for the
preceding 12-month period ending December 31.
(b) In the event that any payment (or portion thereof)
to Executive under Section 5.5(a) is determined to constitute an
"excess parachute payment," under Sections 280G and 4999 of the
Internal Revenue Code of 1986, as amended, the following calculations
shall be made:
(i) The after-tax value to Executive of the payments
under Section 5.5(a) without any reduction; and
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(ii) the after-tax value to Executive of the payments
under Section 5.5(a) as reduced to the maximum amount (the
"Maximum Amount") which may be paid to Executive without any
portion of the payments constituting an "excess parachute
payment".
If after applying the agreed upon calculations set forth above, it is
determined that the after-tax value determined under clause (ii) above
is greater than the after-tax value determined under clause (i) above,
the payments to Executive under Section 5.5(a) shall be reduced to the
Maximum Amount.
5.6 "CHANGE OF CONTROL". As used herein, the term "Change
of Control" shall mean:
(a) When 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
Corporation or any subsidiary or any affiliate of the Corporation or
any employee benefit plan sponsored or maintained by the Corporation or
any subsidiary of the Corporation (including any trustee of such plan
acting as trustee), becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act) of securities of the Corporation
representing a majority of the combined voting power of the
Corporation's then outstanding securities; or
(b) When, during any period of twenty-four (24)
consecutive months, the individuals who, at the beginning of such
period, constitute the Board of Directors (the "Incumbent Directors")
cease for any reason other than death to constitute at least a majority
thereof provided, however, that a director who was not a director at
the beginning of such 24-month period shall be deemed to have satisfied
such 24-month requirement (and be an Incumbent Director) if such
director was elected by, or on the recommendation of or with the
approval of, at least two-thirds of the directors who then qualified as
Incumbent Directors either actually (because they were directors at the
beginning of such 24-month period) or through the operation of this
proviso; or
(c) The occurrence of a transaction requiring
stockholder approval for the acquisition of the Corporation by an
entity other than the Corporation or a subsidiary or an affiliated
company of the Corporation through purchase of assets, or by merger, or
otherwise.
5.7 "GOOD REASON" As used herein, the term "Good Reason"
shall mean the occurrence of any of the following:
(a) the assignment to Executive, without his consent,
of any duties inconsistent in any substantial and
negative respect with his positions, duties,
responsibilities and status with the Corporation as
contemplated hereunder, if not remedied by the
Corporation within thirty (30) days after receipt
of written notice thereof from Executive;
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(b) any removal of Executive, without his consent,
from any positions or offices Executive held as
contemplated hereunder (except in connection with
the termination of Executive's employment by the
Corporation For Cause or on account of Total
Disability pursuant to the requirements of this
Agreement), if not remedied by the Corporation
within thirty (30) days after receipt of written
notice thereof from Executive;
(c) a reduction by the Corporation of Executive's
Base Salary as in effect as contemplated hereunder
or a reduction in any formula used in computing
Executive's compensation pursuant to Section 4 of
this Agreement, except in connection with the
termination of Executive's employment by the
Corporation For Cause or due to Total Disability
pursuant to the requirements of this Agreement;
(d) any termination of Executive's employment by the
Corporation during the Term that is not effected
pursuant to the requirements of this Agreement;
(e) any material breach by the Corporation of the terms
of this Agreement that is not remedied by the
Corporation within thirty (30) days after receipt
of written notice thereof from Executive;
(f) the relocation of Executive's work location,
without Executive's consent, to a place more than
seventy five (75) miles from the location set forth
herein; or
(g) failure by any successor to the Corporation to
expressly assume all obligations of the Corporation
under this Agreement, which failure is not remedied
by the Corporation within thirty (30) days after
receipt of written notice thereof from Executive.
Section 6. DISABILITY.
6.1 TOTAL DISABILITY. In the event that after Executive has
failed, due to a disability, to have performed his regular and customary duties
for a period of ninety (90) consecutive days or for any one hundred eighty (180)
days out of any three hundred and sixty (360) day period, and before Executive
has become "Rehabilitated" (as hereinbelow defined) a majority of the members of
the Board of Directors, exclusive of Executive, may vote to determine that
Executive is mentally or physically incapable or unable to continue to perform
such regular and customary duties of employment and upon the date of such
majority vote, Executive shall be deemed to be suffering from a "Total
Disability." As used herein, the term "Rehabilitated" shall mean such time as
Executive is willing, able and commences to devote his time and energies to the
affairs of the Corporation to the extent and in the manner that he did so prior
to his disability.
6.2 PAYMENT DURING DISABILITY. In the event Executive is
unable to perform his duties hereunder by reason of a disability, prior to the
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time such disability is deemed a Total Disability in accordance with the
provisions of Section 6.1 above, the Corporation shall continue to pay Executive
his Base Salary pursuant to Section 4.1 during the continuance of any such
disability. Upon a determination of any Total Disability pursuant to the
provisions of Section 6.1 above, the Corporation shall pay to Executive his Base
Salary pursuant to Section 4.1 for the twelve (12) month period immediately
subsequent to the date of determination of Total Disability.
Section 7. VACATIONS. Executive shall be entitled to a vacation
of four (4) weeks per year, during which period his Base Salary shall be paid in
full. Executive shall take his vacation at such time or times as Executive and
the Corporation shall determine is mutually convenient.
Section 8. DISCLOSURE OF CONFIDENTIAL INFORMATION. Executive
recognizes that he has had and will continue to have access to secret and
confidential information regarding the Corporation or any of its affiliates,
including, but not limited to, confidential information and trade secrets
concerning the Corporation's (or any of its affiliate's) working methods,
processes, business and other plans, programs, designs, products, know-how,
costs, marketing, promotion, sales activities, trading, investment, credit and
financial data, manufacturing processes, financing methods, profit formulas,
customer names, customer requirements and supplier names. Executive acknowledges
that such information is of great value to the Corporation, is the sole property
of the Corporation, and has been and will be acquired by him in confidence. In
consideration of the obligations undertaken by the Corporation herein, Executive
will not, at any time, during or after his employment hereunder, reveal, divulge
or make known to any person, any information acquired by Executive during the
course of his employment, which is treated as confidential by the Corporation,
including but not limited to its customer list, and not otherwise in the public
domain. The provisions of this Section 8 shall survive Executive's employment
hereunder.
Section 9. COVENANT NOT TO COMPETE.
(a) Executive recognizes that the services to be
performed by him hereunder are special, unique and extraordinary. The parties
confirm that it is reasonably necessary for the protection of the Corporation
that Executive agree, and accordingly, Executive does hereby agree that, except
as provided in Subsection (c) below, he shall not, directly or indirectly, at
any time during the Restricted Period within the Restricted Area (as such terms
are defined in Section 9(d) below), engage in any Competitive Business (as
defined in Section 9(d) below), either on his own behalf or as an officer,
director, stockholder, partner, principal, trustee, investor, consultant,
associate, employee, owner, agent, creditor, independent contractor, co-venturer
of any third party or in any other relationship or capacity. The Corporation
acknowledges that Executive is currently a ten percent (10%) stockholder of
Jackarle, Inc., a privately-held, New York retail apparel corporation and the
Corporation agrees that such ownership interest does not violate the
restrictions set forth in this Section 9(a).
(b) Executive hereby agrees that he will not, directly
or indirectly, for or on behalf of himself or any third party, at any time
during the Restricted Period (i) solicit any customers of the Corporation or
(ii) solicit, employ or engage, or cause, encourage or authorize, directly or
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indirectly, to be employed or engaged, for or on behalf of himself or any third
party, any employee or agent of the Corporation or any of its subsidiaries.
(c) This Section 9 shall not be construed to prevent
Executive from owning, directly and indirectly, in the aggregate, an amount not
exceeding one percent (1%) of the issued and outstanding voting securities of
any class of any corporation whose voting capital stock is traded on a national
securities exchange or in the over-the-counter market.
(d) The term "Restricted Period," as used in this
Section 9, shall mean the period of Executive's actual employment hereunder plus
twenty-four (24) months after the date Executive is no longer employed by the
Corporation. The term "Restricted Area" as used in this Section 9 shall mean
anywhere in the world. The term "Competitive Business" as used in this Agreement
shall mean the design, manufacture, sale, marketing or distribution of (i)
branded or designer footwear, apparel, accessories and other products in the
categories of products sold by, or under license from, the Corporation or any of
its affiliates, (ii) jewelry and other giftware, (iii) cosmetics, fragrances and
other health and beauty care items, (iv) housewares, furniture, home furnishings
and related products and (v) other branded products related to fashion,
cosmetics or lifestyle.
(e) The provisions of this Section 9 shall survive the
termination of Executive's employment as provided hereunder.
Section 10. REASONABLENESS OF COVENANTS. Executive acknowledges that
he has carefully read and considered all the terms and conditions of this
Agreement, including the restraints imposed upon him pursuant to Sections 8 and
9 hereof. Executive agrees that said restraints are necessary for the reasonable
and proper protection of the Corporation and its subsidiaries and affiliates,
and that each and every one of the restraints is reasonable in respect to
subject matter, length of time, geographic area and otherwise. Executive further
acknowledges that, in the event any provision of Sections 8 and 9 hereof shall
be determined by any court of competent jurisdiction to be unenforceable by
reason of its being extended over too great a time, too large a geographic area,
too great a range of activities or otherwise, such provision shall be deemed to
be modified to permit its enforcement to the maximum extent permitted by law.
Section 11. MISCELLANEOUS.
11.1 ENFORCEMENT OF COVENANTS. The parties hereto
agree that Executive is obligated under this Agreement to render personal
services during the Term of a special, unique, unusual, extraordinary and
intellectual character, thereby giving this Agreement peculiar value, and in the
event of a breach of any covenant of Executive herein, the injury or imminent
injury to the value and goodwill of the Corporation's business could not be
reasonably or adequately compensated in damages in an action at law. Executive
therefore agrees that the Corporation, in addition to any other remedies
available to it, shall be entitled to seek specific performance, preliminary and
permanent injunctive relief or any other equitable remedy against Executive,
without the posting of a bond, in the event of any breach or threatened breach
by Executive of any provision of this Agreement (including, but not limited to
the provisions of Sections 8 and 9). Without limiting the generality of the
foregoing, if Executive breaches any provision of Section 8 or 9 hereof, such
breach will entitle the Corporation to enjoin Executive from disclosing any
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confidential information to any competing business, to enjoin such competing
business from receiving Executive or using any such confidential information,
and/or to enjoin Executive from rendering personal services to or in connection
with such competing business. The rights and remedies of the parties hereto are
cumulative and shall not be exclusive, and each party shall be entitled to
pursue all legal and equitable rights and remedies and to secure performance of
the obligations and duties of the other under this Agreement, and the
enforcement of one or more of such rights and remedies by a party shall in no
way preclude such party from pursuing, at the same time or subsequently, any and
all other rights and remedies available to it.
11.2 SEVERABILITY. The invalidity or partial invalidity of
one or more provisions of this Agreement shall not invalidate any other
provision of this Agreement. If any portion or provision of this Agreement shall
to any extent be declared illegal or unenforceable by a court of competent
jurisdiction, the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
11.3 ASSIGNMENTS. Neither Executive nor the Corporation may
assign or delegate any of their rights or duties under this Agreement without
the express written consent of the other, except the Corporation may transfer
its rights and duties in connection with a sale of all or substantially all of
its assets or in connection with a business combination (subject to Section 5.5
hereof).
11.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes
and embodies the full and complete understanding and agreement of the parties
with respect to Executive's employment by the Corporation, supersedes all prior
understandings and agreements, whether oral or written, between Executive and
the Corporation, and shall not be amended, modified or changed except by an
instrument in writing executed by Executive and by an expressly authorized
officer of the Corporation.
11.5 WAIVER. No waiver of any provision hereof shall be
effective unless made in writing and signed by the waiving party. The failure of
either party to require the performance of any term or obligation of this
Agreement, or the waiver by either party of any breach of this Agreement, shall
not prevent any subsequent enforcement of such term or obligation or be deemed a
waiver of any subsequent breach.
11.6 BINDING EFFECT. This Agreement shall inure to the
benefit of, be binding upon and enforceable against, the parties hereto and
their respective successors, heirs, beneficiaries and permitted assigns.
11.7 HEADING. The headings contained in this Agreement are
for convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
11.8 NOTICES. Any and all notices, requests, demands and
other communications required or permitted to be given hereunder shall be in
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writing and shall be deemed to have been duly given when personally delivered,
sent by registered or certified mail, return receipt requested, postage prepaid,
or by private overnight mail service (e.g. Federal Express) to the party at the
address set forth above or to such other address as either party may hereafter
give notice of in accordance with the provisions hereof. Notices shall be deemed
given on the sooner of the date actually received or the third business day
after sending.
11.9 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to such State's conflicts of laws principles and each of the parties
hereto irrevocably consents to the jurisdiction and venue of the federal and
state courts located in the State of New York, County of New York.
11.10 COUNTERPARTS. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date set forth above.
XXXXXX XXXXXX, LTD.
By: /s/ XXXXXX XXXXXX
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Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
/s/ XXXXXXXX XXXXXX
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Xxxxxxxx Xxxxxx
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