EMPLOYMENT AGREEMENT
Exhibit 10.17
THIS
EMPLOYMENT AGREEMENT (the “Agreement”) is effective this 26th day of _October__
2010 (the “Effective Date”), between Ossen Innovation Co. Ltd., a British Virgin
Islands company with its principal place of business located at 000 Xxxxxxxxxx
Xxxx, Xxxxx 00, Xxxxxxxx, 000000, People’s Republic of China (the “Company”),
and Xxxxx Xxx,(the “Executive”).
WHEREAS,
the Company desires to employ the Executive as its Chief Financial Officer, and
Executive desires to accept such employment on terms and conditions hereinafter
set forth.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements hereinafter
set forth, the Company and the Executive agree as follows:
1. TERM. The
Company offers to employ the Executive, and the Executive agrees to be employed
by the Company, in accordance with the terms and subject to the conditions of
this Agreement commencing on the Effective Date and terminating on the first
anniversary of the Effective Date (the “Term”), unless terminated prior thereto
in accordance with the provisions of Section 10 herein. The Term
shall be automatically renewed for successive one (1) year terms, unless either
party gives the other party written notice of its intention not to renew the
Agreement no later than 90 days prior to the expiration of the then current
term. A determination by the Company not to renew this Agreement
without “Cause” shall be deemed a termination of employment for purposes of
Section 10(d) herein and the terms thereof shall apply.
2. POSITION
AND DUTIES. Executive agrees to be employed by the Company during the
Term upon the terms and subject to the conditions set forth in this
Agreement. Executive shall serve as the Chief Financial Officer of
the Company and shall report to the Board of Directors of the Company (the
“Board of Directors”). Throughout the Term, Executive shall
faithfully and diligently perform Executive’s duties in conformity with the
directions of the Company and serve the Company to the best of Executive’s
ability. Executive shall devote his full business time and best
efforts to the business and affairs of the Company. In his capacity
as the Chief Financial Officer of the Company, Executive shall have such duties
and responsibilities as may be prescribed by the Board of
Directors.
3. BUSINESS
OPPORTUNITIES. The Executive covenants and agrees that for so long as
he is employed by the Company, the Executive shall inform the Company of each
and every business opportunity related to the business of the Company of which
the Executive becomes aware, and that the Executive will not, directly or
indirectly, exploit any such opportunity for the Executive’s own account, nor
will the Executive render any services to any other person or business, acquire
any interest of any type in any other business or engage in any activities that
conflict with the Company’s best interests or which is in competition with the
Company. The Executive affirms that no obligation exists between the
Executive and any other entity which would prevent or impede the Executive’s
immediate and full performance of every obligation of this
Agreement.
4. HOURS
OF WORK. The Executive’s normal days and hours of work shall coincide
with the Company’s regular business hours. The nature of the
Executive’s employment with the Company requires flexibility in the days and
hours that the Executive must work, and may necessitate that the Executive work
on other or additional days and hours. The Company reserves the right
to require the Executive, and the Executive agrees, to work during other or
further days or hours than the Company’s normal business hours.
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5. LOCATION. The
location of the Executive’s employment with Company shall primarily be
Shanghai.
6. BASE
SALARY; BONUS.
a. In
consideration of the Executive’s services under this Agreement, the Company
shall pay or cause to pay, and the Executive agrees to accept, during the one
year period following the Effective Date (the “First Year”), a monthly base
salary of RMB41,667 (approximately USD6,118), less all applicable taxes and
other appropriate deductions, paid on the last day of each calendar
month. Following the First Year, the Executive’s base salary shall be
reviewed annually by the Board of Directors of the Company. The
decision to increase or decrease the Executive’s base salary and the amount of
any such increase or decrease are within the sole discretion of the Company’s
Compensation Committee and the Board of Directors.
b. At
the end of each year, the Compensation Committee and the Board of Directors
shall evaluate the Executive’s performance for the prior year and determine
whether or not to grant the Executive an annual cash bonus. The
decision whether or not to grant the Executive’s annual cash bonus, and the
amount of any such bonus, are within the sole discretion of the Company’s
Compensation Committee and the Board of Directors.
7. STOCK
OPTIONS.
During
the Executive’s continued performance of his duties and responsibilities
hereunder, and subject to the provisions in Section 9 herein, the Company shall
award the Executive on the Effective Date stock options to purchase 150,000
shares of the Company’s common stock at the exercise price to be determined by
the 10-day volume weighted average price (“VWAP”) per share calculated from the
date of the Company’s initial public offering in the United States. The
Executive may exercise, in the way of cashless exercise, 50,000 options on the
Effective Date and 50,000 options on each of the first two anniversaries
following the Effective Date. The Stock Options will expire in ten years from
the Effective Date.
8. REIMBURSEMENT
OF EXPENSES; VACTION; INSURANCE.
a. During
the Term, in accordance with the Company’s expense reimbursement policy, the
Executive shall be entitled to reimbursement for reasonable expenses (including,
without limitation, reasonable travel expenses) paid or incurred by him, in
connection with and related to the performance of his duties and
responsibilities hereunder for the Company. All requests by Executive
for reimbursement for such expenses must be supported by appropriate invoices,
vouchers, receipts or such other supporting documentation in such form and
containing such information as the Company may from time to time require,
evidencing that the Executive, in fact, incurred or paid said
expenses.
b. The
Executive shall be entitled to an annual paid vacation for four weeks per
calendar year (as prorated for partial years), such vacations to be taken at
such time or times as mutually agreed upon by the Company and the
Executive. The carry-over of vacation days shall be in accordance
with the Company’s policy applicable to senior executives from time to time in
effect.
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c. During
his employment pursuant to this Agreement, the Executive shall be entitled to
participate in all employee benefit plans and programs to the same extent
generally available to similarly situated employees of the Company, in
accordance with the terms of such plans and programs, including but not limited
to, pension, unemployment and health benefits, and other benefits as required by
local laws and regulations of the People’s Republic of China.
9. TERMINATION.
a. DEATH
OR RESIGNATION. If the Executive dies or resigns during the Term,
this Agreement shall automatically terminate on the date of the Executive’s
death or resignation and, following the date of the Executive’s death or
resignation, the Company shall have no further obligations or liability to the
Executive or his heirs, administrators or executors with respect to compensation
and benefits specified in Sections 6, 7 and 8 herein thereafter, except for the
obligation to pay the Executive (i) any earned but unpaid base salary and other
benefits through the Executive’s date of death or resignation, (ii) for any
unused accrued and unforfeited vacation, and (iii) subject to Section 8 herein,
for any unreimbursed business expenses incurred by the Executive prior to his
death or resignation.
b. DISABILITY. At
any time during the Term, the Company may terminate this Agreement and the
Executive’s employment with the Company because of the Executive’s “Disability,”
by written notice to the Executive. For purposes of this Agreement,
“Disability” shall mean, if at the end of any calendar month during the Term,
the Executive, as a result of mental or physical illness or injury, is or has
been unable to perform his duties under this Agreement, with or without
reasonable accommodation, for a period of 90 consecutive days. If
this Agreement is terminated because of the Executive’s “Disability,” the
Company shall have no further obligations or liability to the Executive or his
heirs, administrators or Executors with respect to compensation and benefits
specified in Sections 6, 7 and 8 herein thereafter, except for the obligation to
pay the Executive (i) any earned but unpaid base salary through the date of
termination for “Disability,” at the rate then in effect, and other benefits
(ii) for any unused accrued and unforfeited vacation, and (iii) subject to
Section 8 herein, for any unreimbursed business expenses incurred by the
Executive prior to his last date of employment with the Company. The
Company shall deduct, from all payments made hereunder, all applicable taxes and
other appropriate deductions.
c. TERMINATION
FOR “CAUSE.” At any time during the Term, the Company may terminate
this Agreement and the Executive’s employment with the Company, at any time, for
“Cause.” For purposes of this Agreement, “Cause” shall mean any of the
following: (i) the neglect or failure or refusal of Executive to perform
Executive’s duties hereunder (other than as a result of total or partial
incapacity due to physical or mental illness), as determined by the Board of
Directors or the Compensation Committee in their sole discretion; (ii) the
engaging by Executive in gross negligence or misconduct which is injurious to
the Company or any of its affiliates, monetarily or otherwise; (iii)
perpetration of an intentional and knowing fraud against or affecting the
Company or any of its affiliates or any customer, client, agent, or employee
thereof; (iv) any willful or intentional act that could reasonably be expected
to injure the reputation, business, or business relationships of the Company or
any of its affiliates or Executive’s reputation or business relationships;
(v) Executive’s material failure to comply with, and/or a material
violation by Executive of, the internal policies of the Company or any of its
affiliates and/or procedures or any laws or regulations applicable to
Executive’s conduct as an employee of the Company; (vi) Executive’s conviction
(including conviction on a nolo contendere plea) of a
felony or any crime involving fraud, dishonesty or moral turpitude; (vii) the
breach of a covenant set forth in Sections 10, 11 or 12 herein; or (viii) any
other material breach by Executive of this Agreement; provided, however, that,
if susceptible of cure, a termination by the Company under Sections 9(c)(i),
10(c)(v) or 10(c)(viii) herein shall be effective only if, within 14 days
following delivery of a written notice by the Company to Executive that the
Company is terminating his employment for Cause, Executive has failed to cure
the circumstances giving rise to Cause. If this Agreement and the
Executive’s employment is terminated for “Cause,” following the Executive’s last
date of employment with the Company, the Company shall have no further
obligations or liability to the Executive or his heirs, administrators or
Executors with respect to compensation and benefits thereafter, except for the
obligation to pay the Executive (i) any earned but unpaid base salary through
the Executive’s last date of employment, at the rate then in effect, (ii) for
any unused accrued and unforfeited vacation, and (iii) subject to Section 8
herein, for any unreimbursed business expenses incurred by the Executive prior
to the last date of employment with the Company. The Company shall
deduct, from all payments made hereunder, all applicable taxes and other
appropriate deductions.
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d. TERMINATION
WITHOUT CAUSE. The Company may terminate Executive’s employment
hereunder at any time for any reason or no reason by giving Executive ninety
(90) days prior written notice of the termination, provided that in the event
that the Company terminates Executive’s employment without “Cause,” the
Executive shall not be subject to the covenants listed in Section 13
herein. Following any such notice, the Company may reduce or remove
any and all of Executive’s duties, positions and titles with the
Company. If this Agreement and the Executive’s employment with the
Company is terminated without “Cause,” following the Executive’s last date of
employment with the Company, the Company shall have no further obligations or
liability to the Executive or his heirs, administrators or executors with
respect to compensation and benefits thereafter, except for the obligation to
pay the Executive (i) any earned but unpaid base salary through the Executive’s
last date of employment, at the rate then in effect, (ii) for any unused accrued
and unforfeited vacation, and (iii) subject to Section 8 herein, for any
unreimbursed business expenses incurred by the Executive prior to his last date
of employment with the Company. The Company shall deduct, from all
payments made hereunder, all applicable taxes and other appropriate
deductions.
10. PROPRIETARY
INFORMATION.
a. Executive
acknowledges that during the course of his employment with the Company he will
necessarily have access to and make use of proprietary information and
confidential records of the Company and its affiliates. Executive
covenants that he shall not during the Term or at any time thereafter, directly
or indirectly, use for his own purpose or for the benefit of any person or
entity other than the Company, nor otherwise disclose, any proprietary
information to any individual or entity, unless such disclosure has been
authorized in writing by the Company or is otherwise required by
law. Executive acknowledges and understands that the term
“proprietary information” includes, but is not limited to: (a) the
software products, programs, applications, and processes utilized by the Company
or any of its affiliates; (b) the name and/or address of any customer or
vendor of the Company or any of its affiliates or any information concerning the
transactions or relations of any customer or vendor of the Company or any of its
affiliates with the Company or such affiliate or any of its or their partners,
principals, directors, officers or agents; (c) any information concerning any
product, technology, or procedure employed by the Company or any of its
affiliates but not generally known to its or their customers, vendors or
competitors, or under development by or being tested by the Company or any of
its affiliates but not at the time offered generally to customers or vendors;
(d) any information relating to the computer software, computer systems, pricing
or marketing methods, sales margins, cost of goods, cost of material, capital
structure, operating results, borrowing arrangements or business plans of the
Company or any of its affiliates; (e) any information which is generally
regarded as confidential or proprietary in any line of business engaged in by
the Company or any of its affiliates; (f) any business plans, budgets,
advertising or marketing plans; (g) any information contained in any of the
written or oral policies and procedures or manuals of the Company or any of its
affiliates; (h) any information belonging to customers or vendors of the Company
or any of its affiliates or any other person or entity which the Company or any
of its affiliates has agreed to hold in confidence; (i) any Inventions (as
defined in Section 11 herein) covered by this Agreement; and (j) all
written, graphic and other material relating to any of the
foregoing. Executive acknowledges and understands that information
that is not novel or copyrighted or patented may nonetheless be proprietary
information. The term “proprietary information” shall not include
information generally available to and known by the public or information that
is or becomes available to Executive on a non-confidential basis from a source
other than the Company, any of its affiliates, or the directors, officers,
employees, partners, principals or agents of the Company or any of its
affiliates (other than as a result of a breach of any obligation of
confidentiality).
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b. Executive
shall not during the Term or at any time thereafter (irrespective of the
circumstances under which Executive’s employment by the Company terminates),
except as required by law, directly or indirectly publish, make known or in any
fashion disclose any confidential records to, or permit any inspection or
copying of confidential records by, any individual or entity other than in the
course of such individual’s or entity’s employment or retention by the
Company. Upon termination of employment for any reason or upon
request by the Company, Executive shall deliver promptly to the Company all
property and records of the Company or any of its affiliates, including, without
limitation, all confidential records. For purposes hereof,
“confidential records” means all correspondence, reports, memoranda, files,
manuals, books, lists, financial, operating or marketing records, magnetic tape,
or electronic or other media or equipment of any kind which may be in
Executive’s possession or under his control or accessible to him which contain
any proprietary information. All property and records of the Company
and any of its affiliates (including, without limitation, all confidential
records) shall be and remain the sole property of the Company or such affiliate
during the Term and thereafter.
c. The
Executive affirms that he did not and does not possess, and has not relied and
will not rely upon the protected trade secrets or confidential or proprietary
information of the Executive’s prior employer(s) in providing services to the
Company.
11. OWNERSHIP
AND ASSIGNMENT OF INVENTIONS.
a. The
Executive acknowledges that, in connection with his duties and responsibilities
relating to his employment with the Company, the Executive and/or other
employees of the Company working with the Executive, without the Executive or
under the Executive’s supervision, may have created, conceived of, made,
prepared, worked on or contributed to, and/or may create, conceive of, make,
prepare, work on or contribute to, the creation of, or may have been or may be
asked by the Company and/or its affiliates or customers to create, conceive of,
make, prepare, work on or contribute to the creation of, without limitation,
lists, business diaries, business address books, documentation, ideas, concepts,
inventions, designs, works of authorship, computer programs, audio/visual works,
developments, proposals, works for hire or other materials
(“Inventions”). To the extent that any such Inventions related or
relate to any actual or reasonably anticipated business of the Company or any of
its affiliates or customers, or falls within, is suggested by or results from
any tasks assigned to the Executive for or on behalf of the Company or any of
its affiliates or customers, the Executive expressly acknowledges that all of
his activities and efforts relating to any Inventions, whether or not performed
during the Executive’s or the Company’s regular business hours, are within the
scope of the Executive’s employment with the Company and that the Company owns
all right, title and interest in and to all Inventions, including, to the extent
that they exist, all intellectual property rights thereto, including, without
limitation, copyrights, patents and trademarks in and to all
Inventions. The Executive also acknowledges and agrees that the
Company owns and is entitled to sole ownership of all rights and proceeds to all
Inventions.
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b. The
Executive expressly acknowledges and agrees to assign to the Company, and hereby
assigns to the Company, all of the Executive’s right, title and interest in and
to all Inventions, including, to the extent they exist, all intellectual
property rights thereto, including, without limitation, copyrights, patents and
trademarks in and to all Inventions.
c. In
connection with all Inventions, the Executive agrees to disclose any Invention
promptly to the Company and to no other person or entity. The
Executive further agrees to execute promptly, at the Company’s request, specific
written assignments of the Executive’s right, title and interest in any
Inventions, and do anything else reasonably necessary to enable the Company to
secure or obtain a copyright, patent, trademark or other form of protection in
or for any Invention in the United States or other countries. The
Executive further agrees that the Company is not required to designate the
Executive as an author of or contributor to any Invention or to secure the
Executive’s permission to change or otherwise alter any Invention.
d. The
Executive acknowledges that all rights, waivers, releases and/or assignments
granted herein and made by the Executive are freely assignable by the Company
and are made for the benefit of the Company and its affiliates, subsidiaries,
licensees, successors and assigns.
e. The
Executive agrees to waive, and hereby does waive, for the benefit of all
persons, any and all right, title and interest in the nature of “moral rights”
or “droit moral” granted to the Executive in any country in the
world.
12. NON-COMPETITION
AND NON-SOLICITATION. Because of the nature of the Company’s
business, and because, as a result of his employment with the Company, the
Executive has been and will continue to be exposed to proprietary information,
the Executive acknowledges that the Company would sustain grievous harm in the
event that he were to disclose proprietary information, engage in business
activities that compete with the Business, appropriate or divert business or
customers of the Company or its affiliates and/or induce employees or
consultants of the Company or its affiliates to leave the employment of the
Company or its affiliates. The Executive acknowledges that the
Company has a legitimate business interest in protecting itself from the
aforementioned harm and in the protection and maintenance of the proprietary
information and of the good will and customer relationships of the Company and
its affiliates. Therefore, the Executive hereby agrees and covenants
to be bound by the non-competition and non-solicitation restrictions set forth
herein below, which restrictions the Executive agrees and acknowledges are
reasonable and necessary and do not impose undue hardship or burdens on the
Executive.
a. The
Executive agrees that, during his employment with the Company and for a period
of six (6) months following the termination of his employment with the Company,
he and his affiliates shall not directly or indirectly own, manage, operate,
control, be employed by, consult for, be an officer of, participate
in, contract with or be connected in any capacity or any manner with any person
or entity whose business activities directly or indirectly (whether through
related persons, entities or otherwise) compete with the Company anywhere,
including but not limited to, the People’s Republic of China and the United
States, in which the Company or its affiliates conducts its business; provided,
however, that the Executive shall not be prevented from owning an interest in a
publicly traded company so long as the fair market value of such interest at the
date of acquisition is less than US$1,000,000.
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b. The
Executive agrees that during the period of his employment with the Company and
for a period of six (6) months following the termination of his employment with
the Company, for any reason, he will not, anywhere, including but not limited
to, the People’s Republic of China and the United States, in which the Company
or its affiliates conducts its business, directly or indirectly recruit, induce,
divert, supervise, employ, manage, hire or entice, or cause to be recruited,
induced, diverted, supervised, employed, managed, hired or enticed, any
employee, consultant or independent contractor of the Company or its affiliates
to leave or terminate the employment or other relationship thereof, for any
reason.
c. The
Executive agrees that during the period of his employment with the Company and
for a period of six (6) months following the termination of his employment with
the Company, he will not, anywhere, including but not limited to, the People’s
Republic of China and the United States, in which the Company or its affiliates
conducts its business, directly or indirectly appropriate, call on, induce,
divert or solicit, or assist another to appropriate, call on, induce, divert or
solicit any actual or potential business or customer away from the Company or
its affiliates, or attempt to do any of the foregoing, or otherwise induce or
attempt to induce any actual or potential business or customer of the Company or
its affiliates, to terminate or adversely modify its relationship with the
Company or its affiliates, or to enter into a relationship with or conduct
business with the Company or its affiliates, which actual or potential business
or customer the Executive was involved with or had a relationship with or whose
identity became known to the Executive in connection with the Executive’s
employment with the Company.
d. If
any of the restrictive covenants set forth in Sections 12(a), (b) and (c) herein
is held to be invalid, illegal or unenforceable (in whole or in part), such
restrictive covenant shall be deemed modified to the extent, but only to the
extent, of such invalidity, illegality or unenforceability, and a court of
competent jurisdiction shall have the power to modify, any such restrictive
covenant to the extent necessary to render such provision enforceable, and the
remaining restrictive covenant shall not be affected thereby.
e. In
the event of a violation of any of the restrictive covenants set forth in
Sections 12(a), (b) and (c) herein, if the Executive is prevented by a court,
arbitrator or other judicial body from committing any further violation, whether
by a temporary restraining order, injunction or otherwise, the time periods set
forth in Sections 12(a), (b) and (c) herein shall be computed by commencing
the periods on the date of the order of such court, arbitrator or other judicial
body and continuing from that date for the full period provided.
f. The
Executive shall have the right to request a waiver of all or part of the
restrictive covenants contained in Sections 12(a), (b) and (c) herein by
providing the Board of Directors or the Compensation Committee with a written
request for such waiver that contains all relevant details. The Board
of Directors or the Compensation Committee may, in its sole discretion, waive
all or part of the restrictive covenants contained in Sections 12(a), (b) and
(c) herein on such terms and conditions, and to such extent, as it, in its sole
discretion, deems appropriate. Such waiver must be in
writing.
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g. The
parties acknowledge that this Agreement would not have been entered into, that
the benefits described in Sections 6, 7 and 8 herein would not have been
promised to the Executive by the Company, in the absence of the Executive’s
covenants and promises set forth in Sections 12(a), (b) and (c)
herein.
13. DISPUTE
RESOLUTION. The Executive and the Company agree that any dispute or
claim, whether based on contract, tort, discrimination, retaliation, or
otherwise, relating to, arising from, or connected in any manner with this
Agreement or with the Executive’s employment with Company shall be resolved
exclusively through final and binding arbitration under the auspices of the Hong
Kong Chamber of Commerce (“HKCC”) in accordance with the commercial arbitration
rules and supplementary procedures for international commercial arbitration of
the HKCC. The arbitration shall be held in Hong
Kong. There shall be three arbitrators: one arbitrator shall be
chosen by each party to the dispute and those two arbitrators shall choose the
third arbitrator. Each party shall cooperate with the other in making
full disclosure of and providing complete access to all information and
documents requested by the other party in connection with the arbitration
proceedings. Arbitration shall be the sole, binding, exclusive and
final remedy for resolving any dispute between the parties. The
arbitrators shall have jurisdiction to determine any claim, including the
arbitrability of any claim, submitted to them. The arbitrators may
grant any relief authorized by law for any properly established
claim. The interpretation and enforceability of this Section 14 shall
be governed and construed in accordance with the United States Federal
Arbitration Act, 9 U.S.C. §§1, et seq. More specifically, the parties
agree to submit to binding arbitration any claims for unpaid wages or benefits,
or for alleged discrimination, harassment, or retaliation, arising under Title
VII of the Civil Rights Act of 1964, the Equal Pay Act, the National Labor
Relations Act, the Age Discrimination in Employment Act, the Americans With
Disabilities Act, the Executive Retirement Income Security Act, the Civil Rights
of 1991, the Family and Medical Leave Act, the Fair Labor Standards Act,
Sections 1981 through 1988 of Title 42 of the United States Code, COBRA, and any
other federal, state, or local law, regulation, or ordinance, and any common law
claims, claims for breach of contract, or claims for declaratory
relief. The Executive acknowledges that the purpose and effect of
this Section 13 is solely to elect private arbitration in lieu of any judicial
proceeding he might otherwise have available to him in the event of an
employment-related dispute between him and the Company. Therefore,
the Executive hereby waives his right to have any such employment-related
dispute heard by a court or jury, as the case may be, and agrees that his
exclusive procedure to redress any employment-related claims will be
arbitration.
14. MISCELLANEOUS.
a. Telephones,
stationery, postage, e-mail, the internet and other resources made available to
the Executive by the Company, are solely for the furtherance of the Company’s
business.
b. All
issues concerning, relating to or arising out of this Agreement and from the
Executive’s employment by the Company, including, without limitation, the
construction and interpretation of this Agreement, shall be governed by and
construed in accordance with the internal laws of the State of New York, without
giving effect to that State’s principles of conflicts of law.
c. The
Executive and the Company agree that any provision of this Agreement deemed
unenforceable or invalid may be reformed to permit enforcement of the
objectionable provision to the fullest permissible extent. Any
provision of this Agreement deemed unenforceable after modification shall be
deemed stricken from this Agreement, with the remainder of the Agreement being
given its full force and effect.
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d. The
Company shall be entitled to equitable relief, including injunctive relief and
specific performance as against the Executive, for the Executive’s threatened or
actual breach of Sections 10, 11 or 12 herein, as money damages for a breach
thereof would be incapable of precise estimation, uncertain, and an insufficient
remedy for an actual or threatened breach of Sections 10, 11 or 12
herein. The Executive and the Company agree that any pursuit of
equitable relief in respect of Sections 10, 11 or 12 herein shall have no effect
whatsoever regarding the continued viability and enforceability of Section 13
herein.
e. Any
waiver or inaction by the Company for any breach of this Agreement shall not be
deemed a waiver of any subsequent breach of this Agreement.
f. The
Executive and the Company independently have made all inquiries regarding the
qualifications and business affairs of the other which either party deems
necessary. The Executive affirms that he fully understands this
Agreement’s meaning and legally binding effect. Each party has
participated fully and equally in the negotiation and drafting of this
Agreement. Each party assumes the risk of any misrepresentation or
mistaken understanding or belief relied upon by his or it in entering into this
Agreement.
g. The
Company and the Executive agree that the Executive’s obligations to the Company
during the Executive’s employment with the Company, as well as any other
obligation of the Executive under this Agreement, may be assigned to any
successor in interest to the Company or any division or affiliate of the Company
in its sole discretion and without additional consideration or prior notice to
the Executive, but that nothing requires the Company to do so. The
Executive’s obligations under this Agreement are personal in nature and may not
be assigned by the Executive to any other person or entity.
h. The
Company and the Executive acknowledge and agree that future alterations to the
Executive’s work hours, working title, management or supervisory
responsibilities, number of subordinate employees, sales or promotional budgets,
reporting relationships within the Company or with businesses affiliated with
the Company, management responsibilities or duties, or similar changes or
alterations may occur periodically during the Executive’s employment with the
Company. The Company and the Executive agree that the Company, in its
sole discretion, may implement such alterations or adjustments for any or no
reason and that any such action shall not constitute a breach of this Agreement
so long as the Company continues to perform its remaining obligations as
provided by this Agreement.
i. This
instrument constitutes the entire Agreement between the parties regarding its
subject matter. When signed by all parties, this Agreement supersedes
and nullifies all prior or contemporaneous conversations, negotiations, or
agreements, oral and written, regarding the subject matter of this
Agreement. In any future construction of this Agreement, this
Agreement should be given its plain meaning. This Agreement may be
amended only by a writing signed by the Company and the
Executive.
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j. Notwithstanding
the termination of this Agreement and of the Executive’s employment with the
Company for any reason, Sections 10, 11 or 12 herein shall continue in full
force and effect in accordance with their terms following such
termination.
k. This
Agreement may be executed in counterparts, a counterpart transmitted via
facsimile, and all executed counterparts, when taken together, shall constitute
sufficient proof of the parties’ entry into this Agreement. The
parties agree to execute any further or future documents which may be necessary
to allow the full performance of this Agreement. This Agreement
contains headings for ease of reference. The headings have no
independent meaning.
THE
EXECUTIVE STATES THAT HE HAS FREELY AND VOLUNTARILY ENTERED INTO THIS AGREEMENT
AND THAT HE HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION
THEREOF. THIS AGREEMENT IS EFFECTIVE UPON THE EXECUTION OF THIS
AGREEMENT BY BOTH PARTIES.
[Signature
page follows]
10
IN WITNESS WEREOF, the Company has
caused this Agreement to be duly executed on its behalf by an individual
thereunto duly authorized and Executive has duly executed this Agreement, each
as of the date and year first written above.
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|
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|||
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Name:
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Xxxxx Xxx
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By:
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Name:
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Xxx
Xxx
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|||
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Title:
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Chief
Executive
Officer
|
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11
