EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.2
This
EXECUTIVE EMPLOYMENT AGREEMENT (the “Agreement”),
effective as of November 29, 2016 (the “Effective
Date”), by and between MERIDIAN WASTE SOLUTIONS, INC., a New
York corporation, with offices at 00000 Xxxxxxxxx Xxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxx 00000 (hereinafter called the
“Company”), and XXXXXX X’XXXXXX, an individual
(the “Executive”). The Company and Executive are also
each hereinafter referred to individually as a “Party”
and together as the “Parties”
W
I T N E S S E T H:
WHEREAS, the
Executive is currently employed by the Company as Corporate
Comptroller/SEC Compliance Director;
WHEREAS
Company desires to employ the Executive to perform services as
Chief Financial Officer for the Company, and the Executive desires
to perform such services, on the terms and conditions set forth in
this Agreement;
WHEREAS in connection with Executive’s
prior employment with the Company as its Comptroller, the
Company issued to Executive Three Hundred Thousand (300,000)
restricted shares of the Company's common stock (the “Initial
Shares”);
NOW,
THEREFORE, in consideration of the premises and the mutual promises
contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1.
EMPLOYMENT
The
Company agrees to employ the Executive as Chief Financial Officer
of the Company, and the Executive agrees to serve as the Chief
Financial Officer of the Company upon the terms and conditions
hereinafter set forth.
2.
TERM
The
term of this Agreement is for a period of twenty-four (24) months,
beginning on the Effective Date (the “Initial Term”).
This Agreement is automatically renewable for successive terms of
twelve (12) months (each a “Renewal Term”).
For purposes of this Agreement, the
Initial Term and any Renewal Term are hereinafter collectively
referred to as the “Term.” This Agreement will
automatically renew unless either Party provides the other with
written notice of non-renewal at least sixty (60) days before the
end of the Term.
3.
COMPENSATION
(a)
Base Salary.
Beginning on the Effective Date, the Company agrees to pay the
Executive a base salary at the annual rate of Three Hundred
Thousand Dollars ($300,000). All salary, bonus, or other
compensation payable to the Executive shall be subject to the
customary withholding, FICA, medical and other tax and other
employment taxes and deductions as required by federal, state and
local law with respect to compensation paid by an employer to an
employee. The Board of Directors and any committees thereof may
perform an annual review of Executive’s salary based on a
review of Executive’s performance of his duties and the
Company’s other compensation policies.
(b) Incentive
Bonus.
(i) Cash.
In addition to the foregoing salary, Executive shall be eligible
for an annual cash incentive bonus (“Cash Incentive
Bonus”) in the amount of Fifty Thousand Dollars ($50,000), or
such other amount as shall be determined by the Board of Directors
in accordance with criteria determined by the Board of Directors
and based on the review and recommendation of the Compensation
Committee of the Board of Directors. The Cash Incentive Bonus shall
be payable annually in cash and/or equity, at the election of the
Executive.
(ii) Equity.
In addition to the foregoing, during each calendar year of this
Agreement, Executive shall be entitled to an annual bonus, payable
in restricted common stock of the Company in accordance with the
Company’s 2016 Equity and Incentive Plan, based upon (i)
acquisitions by the Company or its subsidiaries of substantially
all the assets of existing businesses or of controlling interests
in existing business entities and (ii) equity or debt financings
(collectively, the “Major Transactions”). The bonus
shall be calculated as of January 15th of each year of this
Agreement based upon the Major Transactions which took place in the
immediately preceding calendar year. The bonus shall be calculated
as follows: The dollar value of the bonus shall be calculated by
multiplying the sum of the purchase prices and/or proceeds of all
Major Transactions, without double-counting, during the immediately
preceding year by .005. The dollar value of such bonus shall then
be divided by the average closing bid price of the common stock of
the Company (the “Common Stock”) in the principal
market on which the Common Stock is traded, for the five (5)
consecutive trading days ending on the last trading day of the
previous calendar year. The resulting calculation shall be the
number of restricted common shares of the Company which shall be
issued to the Executive. The calculations described above shall be
made by no later than January 15th of the year following the
calendar year for which the calculations are based and the shares
shall be issued to the Executive within 15 days of the calculation
having been completed.
4.
DUTIES
The
Executive is hereby employed as Chief Financial Officer of the
Company and shall perform the following services in connection with
the general business of the Company:
(a)
Duties as Chief
Financial Officer. Executive shall have such duties,
responsibilities and authority as are commensurate and consistent
with the positions of Chief Financial Officer of a company and as
may, from time to time, be assigned to him by the Board of
Directors or the Chief Executive Officer. Executive shall report
directly to the Board of Directors and the Chief Executive Officer.
During the Term, Executive shall devote his full business time and
efforts to the performance of his duties hereunder, except as may
be otherwise authorized by the Board. The Executive will comply and
be bound by the Company’s written operating policies,
procedures and practices from time to time in effect during
Executive’s employment. Executive represents and warrants
that he is free to enter into and fully perform this Agreement and
the agreements referred to herein without breach of any agreement
or contract to which he is a party or by which he is
bound.
(b)
Compliance. The Executive
hereby agrees to observe and comply with such reasonable rules and
regulations of the Company as may be duly adopted from time to time
by the Company's Chief Executive Officer and Board of Directors and
otherwise to carry out and perform those orders, directions and
policies stated to him from time to time, either as specified in
the minutes of the proceedings of the Board of Directors of the
Company or otherwise in writing that are reasonably necessary and
appropriate to carry out his duties hereunder. Such orders,
directions and policies shall be legal and shall be consistent with
the Executive's position Chief Financial Officer.
5.
EXTENT OF SERVICES
The
Executive agrees to serve the Company faithfully and to the best of
his ability and shall devote his full time, attention and energies
to the business of the Company during customary business hours,
except as may be otherwise authorized by the Board. The Executive
agrees to carry out his duties in a competent and professional
manner and to at all times promote the best interests of the
Company. The Executive shall not, during the Term of his employment
hereunder, engage in any other business, whether or not pursued for
profit. Nothing contained herein shall be construed as preventing
the Executive from investing in any other business or entity which
is not in competition with the business of the Company. Nothing
contained herein shall be construed as preventing the Executive
from (1) engaging in personal business affairs and other personal
matters, (2) serving on civic or charitable boards or committees,
or (3) serving on the board of directors of companies that do not
compete directly or indirectly with the Company, provided however, that none of such
activities materially interferes with the performance of his duties
under this Agreement and provided further that the Board of
Directors approves of each such proposed appointment which approval
shall not be unreasonably withheld.
6.
BENEFITS AND EXPENSES
During
the Term, Executive shall be entitled to, and the Company shall
provide, the following benefits in addition to those specified in
Section 3:
(a)
Vacation. The Executive shall
be entitled to four (4) weeks’ vacation in each twelve (12)
month period during the Term. Vacation may be taken at such time(s)
as Executive may determine provided that such vacation does not
interfere with the Company's business operations. The Executive
must use his vacation in any event by May 31 of the year next
following the year in which the vacation accrues or such vacation
time shall expire. The Executive shall not be entitled to
compensation for unused vacation except that, upon termination of
his employment and so long as it is consistent with section 7
herein, the Company shall pay to the Executive for all of his
accrued, unexpired vacation time. The Executive shall accrue 1.66
vacation days per month beginning on the date hereof.
(b)
Expense Reimbursement. The
Company shall reimburse the Executive upon submission of vouchers
or receipts for his out-of-pocket expenses for travel,
entertainment, meals and the like reasonably incurred by him
pursuant to his employment hereunder in accordance with the general
policy of the Company as adopted by its Board of Directors from
time to time.
(c)
Health Insurance. The Company
shall provide the Executive with health insurance in the coverages
consistent with those provided to other similarly situated
executives of the Company.
(d)
Disability Insurance. If the
Company maintains disability insurance, then the Company shall provide a
disability policy for the Executive comparable to the policies in
force for other similarly situated executives in the
Company.
(e)
Other Benefits. The
Company shall provide to the Executive the same benefits it makes
available to other similarly situated executives of the Company as
determined from time to time by the Board of
Directors.
7.
TERMINATION; DISABILITY; RESIGNATION; TERMINATION WITHOUT
CAUSE
(a)
Termination for Cause. The
Company shall have the right to terminate the Executive's
employment hereunder:
(1)
For Cause upon such
termination, Executive shall have no further duties or obligations
under this Agreement (except as provided in Section 8) and the
obligations of the Company to Executive shall be as set forth
below. For purposes of this Agreement, “Cause” shall
mean:
(A)
Executive’s
indictment or conviction of a felony or any crime involving moral
turpitude under federal, state or local law;
(B)
Executive’s
failure to perform (other than as a result of Executive's being
Disabled), in any material respect, any of his duties or
obligations under or in accordance with this Agreement for any
reason whatsoever and the Executive fails to cure such failure
within ten business days following receipt of notice from the
Company;
(C)
Executive commits
any dishonest, malicious or grossly negligent act which is
materially detrimental to the business or reputation of the
Company, or the Company’s business relationships, provided,
however, that in such event the Company shall give the Executive
written notice specifying in reasonable detail the reason for the
termination;
(D)
Any intentional
misapplication by Executive of the Company’s funds or other
material assets, or any other act of dishonesty injurious to the
Company committed by Executive; or
(E)
Executive’s
use or possession of any controlled substance or chronic abuse of
alcoholic beverages, which use or possession the Board of Directors
reasonably determines renders Executive unfit to serve in his
capacity as a senior executive of the Company.
In the
event the Company terminates the Executive's employment for cause,
then the Executive shall be entitled to receive through the date of
termination: (1) his base salary as defined in Section 3(a) hereof;
and (2) the benefits provided in Section 6 hereof including all
accrued but unpaid vacation.
(b)
Disability. The Company shall
have the right to terminate the Executive's employment
hereunder:
(1)
By reason of the
Executive's becoming Disabled for an aggregate period of ninety
(90) days in any consecutive three hundred sixty (360) day period
(the “Disability Period”).
(A)
“Disabled”
as used in this Agreement means that, by reason of physical or
mental incapacity, Executive shall fail or be unable to
substantially perform the essential duties of his employment with
or without reasonable accommodation.
(B)
In the event
Executive is Disabled, during the period of such disability he
shall continue to receive his base compensation in the amount set
forth in Section 3(a) hereof, which base compensation shall be
reduced by the amount of all disability benefits he actually
receives under any disability insurance program in place with the
Company until the first to occur of (1) the cessation of the
Disability or (2) the termination of this Agreement by the Company.
During the period of Disability and prior to termination, the
Executive shall continue to receive the benefits provided in
Section 6 hereof.
(C)
For the purposes of
this Section 7(b), any amounts to be paid to Executive by the
Company pursuant to subsection (B) above, shall not be reduced by
any disability income insurance proceeds received by him under any
disability insurance policies owned or paid for by the
Executive.
(D)
If the Executive is
terminated at the end of the Disability Period, then the Executive
shall receive through the date of termination: (1) his base salary
as defined in Section 3(a) hereof; and (2) the benefits provided in
Section 6 hereof including all accrued but unpaid
vacation.
(c)
Death. The Company's employment
of the Executive shall terminate upon his death and all payments
and benefits shall cease upon such date provided, however, that
under this Agreement the estate of such Executive shall be entitled
to receive through the date of termination (1) his base salary as
defined in Section 3(a) hereof and (2) the benefits provided in
Section 6 hereof including all accrued but unpaid
vacation.
(d)
Termination by the Executive for Good
Reason.
The
Executive may elect, by written notice to the Company, such notice
to be effective immediately upon receipt by the Company, to
terminate his employment hereunder if:
(1)
The Company sells
all or substantially all of its assets and the Executive is not
retained or otherwise has his employment terminated;
(2)
The Company merges
or consolidates with another business entity in a transaction
immediately following which the holders of all of the outstanding
shares of the voting capital stock of the Company own less than a
majority of the outstanding shares of the voting capital stock of
the resulting entity (whether or not the resulting entity is the
Company); provided, however, that the Executive shall not be
permitted to terminate his employment under this subsection unless
he notifies the Company in writing that he does not approve of the
directors selected to serve on the Board after the merger or
similar transaction described herein;
(3)
More than fifty
(50%) percent of the outstanding shares of the voting capital stock
of the Company are acquired by a person or group (as such terms are
used in Section 13(d) of the Securities Exchange Act of 1934, as
amended), which person or group includes neither the Executive nor
the holders of the majority of the outstanding shares of the voting
capital stock of the Company on the date hereof; provided, however,
that the Executive shall not be permitted to terminate his
employment under this subsection unless he notifies the Company in
writing that he does not approve of the directors selected to serve
on the Board after the merger or similar transaction described
herein;
(4)
The Company
defaults in making any of the payments required under this
Agreement and said default continues for a one hundred eighty (180)
day period after the Executive has given the Company written notice
of the payment default.
If the Executive elects to
terminate his employment hereunder pursuant to this Section 7(d),
then (1) the Company shall continue to pay to the Executive his
salary as provided in Section 3(a) hereof through the end of the
current Term; (2) the Company shall continue to provide to the
Executive the benefits provided in Section 6 hereof through the end
of the current Term; and (3) all of the options granted to the
Executive hereunder to purchase shares of the common stock of the
Company shall vest immediately and the term of the option shall
continue for the period specified in the option had the employment
of the Executive not been so terminated.
(e)
Resignation. If the Executive
voluntarily resigns during the Term of this Agreement or any
Renewal Term other than pursuant to Section 7(d) hereof, then all
payments and benefits shall cease on the effective date of
resignation, provided that under this Agreement the Executive shall
be entitled to receive through the date of such resignation (1) his
base salary as defined in Section 3(a) hereof and (2) the benefits
provided in Section 6 hereof including all accrued but unpaid
vacation.
(f)
Termination Without Cause. The
Company may terminate this Agreement at any time, for any reason,
or for no reason, effective immediately upon written notice to
Executive. If the Company terminates this Agreement pursuant to
this Section 7(f) during the Term of this Agreement, then the
Company shall continue to pay to the Executive his base salary
hereunder through the first anniversary of the date of such
termination and the Executive shall receive all the benefits
provided in Section 6 hereof.
(g)
Recoupment of Initial Shares.
If Executive’s employment is terminated (i) by the Company
for Cause, (ii) by Executive breaching this Agreement for any
reason whatsoever, or (iii) by Executive without Good Reason, then
the following percentages of Initial Shares shall be subject to
immediate recoupment by the Company:
|
Termination
Date
|
Percentage of
Initial Shares Subject to
Recoupment
|
|
From
Effective Date through May 31, 2017
|
90%
|
|
June 1,
2017 through May 31, 2018
|
66%
|
|
June 1,
2018 through May 31, 2019
|
33%
|
For the
avoidance of doubt, if Executive is employed under this Agreement
on June 1, 2019, this Section 7(g) shall no longer be in effect and
Executive’s Initial Shares shall not be subject to recoupment
by the Company. In addition, this Section 7(g) shall not subject
any other compensation given to the Executive under Section 3(a) or
3(b) hereof to recoupment by the Company.
8.
CONFIDENTIALITY; RESTRICTIVE COVENANTS; NON
COMPETITION
(a)
Non-Disclosure of
Information.
(1)
The Executive
recognizes and acknowledges that by virtue of his position as a key
executive, he will have access to the lists of the Company's
vendors, suppliers, financing sources, advertisers and customers,
financial records and business procedures, personnel, software,
practices, plans, strategy, and other unique business information
and records (collectively “Proprietary Information”),
as same may exist from time to time, and that they are valuable,
special and unique assets of the Company's business. The Executive
also may develop on behalf of the Company a personal acquaintance
with the present and potential future clients and customers of the
Company, and the Executive’s acquaintance may constitute the
Company’s sole contact with such clients and
customers.
(2)
The Executive will
not, without the prior written consent of the Company, during the
Term of his employment or any time thereafter, except as may be
required by competent legal authority or as required by the Company
to be disclosed in the course of performing Executive’s
duties under this Agreement, disclose trade secrets or other
confidential information about the Company, including but not
limited to Proprietary Information, to any person, firm,
corporation, association or other entity for any reason or any
purpose whatsoever or utilize such Proprietary Information for his
own benefit or the benefit of any third party; .provided, however,
that nothing contained herein shall prohibit the Executive from
using his personal acquaintance with any clients or customers of
the Company at any time in a manner that is not inconsistent with
their remaining as clients or customers of the
Company.
(3)
All equipment,
records, files, memoranda, computer print-outs and data, reports,
correspondence and the like, relating to the business of the
Company which Executive shall use or prepare or come into contact
with shall remain the sole property of the Company. The Executive
shall immediately turn over to the Company all such material in
Executive's possession, custody or control at such time as this
Agreement is terminated.
(4)
“Proprietary
Information” shall not include information that was a matter
of public knowledge on the date of this Agreement or subsequently
becomes public knowledge other than as a result of having been
revealed, disclosed or disseminated by Executive, directly or
indirectly, in violation of this Agreement.
(b)
Non-Solicitation. The Executive
covenants and agrees that during the term of his employment, and
for a two (2) year period immediately following the end of the Term
of or earlier termination of this Agreement, regardless of the
reason therefor, the Executive shall not solicit, induce, aid or
suggest to: (1) any employee to leave such employ, (2) any
contractor, consultant or other service provider to terminate such
relationship, or (3) any customer, agency, vendor, or supplier of
the Company to cease doing business with the Company.
(c)
Non-Competition. For purposes
of this Section 8(c) the parties agree that the “business of
the Company” shall be defined to refer to the solid waste
industry, including hauling and landfill operations.
The
Executive covenants and agrees that during the Term, Executive
shall not engage in any activity or render service in any capacity,
directly or indirectly, (whether as principal, director, officer,
investor, employee, consultant or otherwise) for or on behalf of
any person or persons or entity in the United States or anywhere
else in the world if such activity or service directly or
indirectly involves or relates to any (1) business which is in
competition with the business of the Company or (2) other business
acquired or begun by the Company during the period of the
Executive’s employment hereunder but in the latter event only
if the Executive was directly involved in the operation of such
other business. It is understood and agreed that nothing herein
contained shall prevent the Executive from engaging in discussions
concerning business arrangements to become effective upon the
expiration of the term of this covenant not to
compete.
(d)
Enforcement. In view of the
foregoing, the Executive acknowledges and agrees that it is
reasonable and necessary for the protection of the good will,
business, trade secrets, confidential information and Proprietary
Information of the Company that he makes the covenants in this
Section 8 and that the Company will suffer irreparable injury if
the Executive engages in the conduct prohibited by Section 8 (a),
(b) or (c) of this Agreement. The Executive agrees that upon a
breach, threatened breach or violation by him of any of the
foregoing provisions of this Section 8, the Company, in addition to
all other remedies it may have including an action at law for
damages, shall be entitled as a matter of right to injunctive
relief, specific performance or any other form of equitable relief
in any court of competent jurisdiction without being required to
post bond or other security and without having to prove the
inadequacy of the available remedies at law, to enjoin and restrain
the Executive and each and every other person, partnership,
association, corporation or organization acting in concert with the
Executive, from the continuance of any action constituting such
breach. The Company shall also be entitled to recover from the
Executive all of its reasonable costs incurred in the enforcement
of this Section 8 including its reasonable legal fees. The
Executive acknowledges that the terms of Section 8(a), (b) and (c)
are reasonable and enforceable and that, should
there be a violation or attempted or threatened violation by the
Executive of any of the provisions contained in these subsections,
the Company shall be entitled to relief by way of injunction,
specific performance or other form of equitable relief. In the
event that any of the foregoing covenants in Sections 8 (a), (b) or
(c) shall be deemed by any court of competent jurisdiction, in any
proceedings in which the Company shall be a party, to be
unenforceable because of its duration, scope, or area, it shall be
deemed to be and shall be amended to conform to the scope, period
of time and geographical area which would permit it to be
enforced.
(e)
Independent Covenants. The
Company and the Executive agree that the covenants contained in
this Section 8 shall each be construed as a separate agreement
independent of any of the other terms and conditions of this
Agreement, and the existence of any claim by the Executive against
the Company, whether predicated on this Agreement or otherwise,
shall not constitute a defense by the Executive to the
Company’s enforcement of any of the covenants of this Section
8.
9.
DISCLOSURE AND ASSIGNMENT
OF RIGHTS.
(a)
Disclosure. The Executive
agrees that he will promptly assign to the Company or its
nominee(s) all right, title and interest of the Executive in and to
any and all ideas, inventions, discoveries, secret processes, and
methods and improvements, together with any and all patents or
other forms of intellectual property protection that may be
obtainable in connection therewith or that may be issued thereon,
such as trademarks, service marks and copyrights, in the United
States and in all foreign countries, which the Executive may
invent, develop, or improve or cause to be invented developed or
improved, on behalf of the Company while engaged in Company related
decisions, during the Term or within six (6) months after the Term
or earlier termination of this Agreement, which are or were related
to the scope of the Company’s business or any work carried on
by the Company or to any problems and projects specifically
assigned to the Executive. All works and writings which relate to
the Company’s business are works for hire under the Copyright
Act, and any and all copyrights therefor shall be placed in the
name of and inure to the benefit of the Company.
(b)
Assignment of Interest. The
Executive agrees to disclose immediately to duly authorized
representatives of the Company any ideas, inventions, discoveries,
processes, methods and improvements covered by the terms of this
Section 9 and to execute, at the Company’s expense, all
documents reasonably required in connection with the
Company’s application for appropriate protection and
registration under the federal and foreign patent, trademark, and
copyright law and the assignment thereof to the Company’s
nominee (s). The Executive hereby appoints the Company’s
Chairman as true and lawful attorney in fact with full powers of
substitution and delegation to execute acknowledge and deliver any
such instruments and assignments, which the Executive shall fail or
refuse to execute or deliver.
10.
INDEMNIFICATION.
The
Company shall indemnify the Executive to the maximum extent
permitted under the New York Business Corporation Law, or any
successor thereto, and shall promptly advance any expenses incurred
by the Executive prior to the final disposition of the proceeding
to which such indemnity relates upon receipt from the Executive of
a written undertaking to repay the amount so advanced if it shall
be determined ultimately that the Executive is not entitled to
indemnity under the standards set forth in the New York Business
Corporation Law or its successor. The Company shall use
commercially reasonable efforts to obtain and maintain throughout
the Term of the employment of the Executive hereunder
directors’ and officers’ liability insurance for the
benefit of the Executive. The indemnification obligations of the Company under
this Section 10 shall survive the termination of the Term or of
this Agreement for any reason whatsoever unless the Agreement is
terminated for cause.
11.
NOTICES.
(a)
Any and all notices
or other communications given under this Agreement shall be in
writing and shall be deemed to have been duly given on (1) the date
of delivery, if delivered in person to the addressee, (2) the next
business day if sent by overnight courier, or (3) three (3) days
after mailing, if mailed within the continental United States,
postage prepaid, by certified or registered mail, return receipt
requested, to the party entitled to receive same, at his or its
address set forth below.
The
Company:
00000
Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxx,
XX 00000
Attn:
Xxxxxxx Xxxxxx, CEO
If to
the Executive:
Xxxxxx
X’Xxxxxx
[22401
Xxxxxxxx Xxxxxx
Xxxx
Xxxxx, XX 00000]
(b)
The parties may
designate by notice to each other any new address for the purposes
of this Agreement as provided in this Section 11.
12.
MISCELLANEOUS PROVISIONS
(a)
This agreement
represents the entire Agreement between the parties and supersedes
any prior agreement or understanding between them with respect to
the subject matter hereof, including without limitation that
certain Employment Agreement dated May 23, 2016. No provision
hereof may be amended, modified, terminated, or revoked except by a
writing signed by all parties hereto.
(b)
This Agreement
shall be binding upon parties and their respective heirs, legal
representatives, and successors. Subject to the provisions of
Section 7(d) hereof, the rights and interests of Company hereunder
may be assigned to (1) a subsidiary or affiliate of the Company or
(2) a successor business or successor business entity that is not a
subsidiary or affiliate of the Company without the Executive's
prior written consent; provided, however, that in either case the
assignee continues the same business of the Company. The rights,
interests and obligations of Executive are
non-assignable.
(c)
No waiver of any
breach or default hereunder shall be considered valid unless in
writing and signed by the party against whom the waiver is
asserted, and no such waiver shall be deemed the waiver of any
subsequent breach or default of the same or similar
nature.
(d)
If any provision of
this Agreement shall be held invalid or unenforceable, such
invalidity or unenforceability shall affect only such provision and
shall not in any manner affect or render invalid or unenforceable
any other severable provision of this Agreement, and this Agreement
shall be carried out as if any such invalid or unenforceable
provision were not contained herein.
(e)
The captions and
headings contained in this Agreement are for convenience only and
shall not be construed as a part of this Agreement.
(f)
Wherever it appears
appropriate from the context, each term stated in this the singular
or the plural shall include the singular and the
plural.
(g)
The parties hereto
agree that they will take such action and execute and deliver such
documents as may be reasonably necessary to fulfill the terms of
this Agreement.
(h)
The agreements and
covenants set forth in Section 8 above shall survive termination or
expiration of this Agreement.
(i)
The Executive
represents and warrants that he is not subject to any prohibition
or restriction, oral or written, preventing him from entering into
this Agreement and undertaking his duties hereunder.
(j)
The Executive
acknowledges that he has consulted with counsel and been advised of
his rights in connection with the negotiation, execution and
delivery of this Agreement including in particular Section 8 of
this Agreement.
13
Governing
Law. The Agreement shall be
construed in accordance with the laws of the State of New Jersey
and any dispute under this Agreement will only be brought in the
state and federal courts located in the State of New
Jersey.
14.
Waiver of Jury Trail.
THE EXECUTIVE HEREBY KNOWINGLY,
VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES ALL RIGHT TO A
TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED ON THIS
AGREEMENT, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS
AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF OR BETWEEN ANY PARTY
HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
COMPANY ENTERING INTO THIS AGREEMENT. THE COMPANY’S
REASONABLE RELIANCE UPON SUCH INDUCEMENT IS HEREBY
ACKNOWLEDGED.
[Signatures
Appear on the Following Page]
IN
WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement on the date first above written.
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By:
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/s/
Xxxxxxx Xxxxxx
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Name:
Xxxxxxx Xxxxxx
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Title:
Chief Executive Officer
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