Exhibit 10.4
AGREEMENT
THIS AGREEMENT made as of this 24th day of September, 1996, by and
between IMATEC Limited, a corporation of Delaware, (hereinafter called
"Employer" or "IMATEC") and XXXXX X. XXXXX (hereinafter called "Employee").
W I T N E S E T H
WHEREAS, the Employee possesses the knowledge, skills and experience
necessary to serve and advance the operations and business of the Employer in
the capacity designated in this Agreement; and
WHEREAS, Employer desires to employ the Employee to serve in the
capacity designated in this Agreement, and Employee is willing to accept
employment as such; and
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the parties intending to be legally bound agree as follows,
1. EMPLOYMENT:
The Employer hereby employs the Employee and the Employee
hereby accepts employment in the position of Chief Financial Officer, under and
subject to the terms and conditions contained in this Agreement.
2. TERM OF EMPLOYMENT:
Subject to the provisions for termination of employment as
hereinafter provided, Employee's term of employment by Employer under this
Agreement shall commence on September 24th, 1996 and terminate September 25th,
2001.
3. EXTENT OF SERVICES:
Employee shall be a full-time employee, in the above named
position and shall devote that amount of his ability, working time and energy to
serve and advance the operations and business of the Employer and to perform his
duties in a faithful and diligent manner hereunder. The duties of Employee in
the capacity of employment designated in this Agreement shall be those set forth
by the Employer consistent with duties and responsibilities considered typical
of the above designated position. The employee will report directly to the
President of the Employer during the term of his employment.
4. COMPENSATION:
For all services performed by Employee in the described
capacity hereunder, Employee shall receive remuneration as designated in
Schedule 1.
The compensation to Employee for services provided according
to paragraph 1 above, may only be terminated following the termination procedure
as outlined in paragraph 5. Upon termination, the compensation and benefits for
the above services will terminate as well.
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5. TERMINATION:
Notwithstanding any other provision hereof, Employee's
employment, hereunder may be ended at any time for any cause or no cause upon
written notice of thirty (30) days. Employee must provide Employer at least
thirty (30) days written notice prior to resignation.
6. BENEFITS:
Employee shall be entitled to receive all benefits set forth
in Schedule 2.
7. WORKING FACILITIES:
The employee shall be furnished with an office, administrative
and stenographic help, and such other facilities, services, and expense
reimbursement suitable to his position and adequate for the performance of his
duties. The Employee will work at the corporate headquarters with the exception
of travel for business.
8. DISCLOSURE OF INFORMATION:
A. Employee recognizes that by reason of employment with
Employer, he has engaged in and will engage in and has gained and will gain
knowledge of information, developments, research projects, manufacturing and
trade secrets, know-how and business confidences relating to, and concerned
with, the past, present and future business operations, products and policies of
the Employer, its affiliates, suppliers, customers and other persons. Employee
hereby agrees to hold as secret and confidential any and all proprietary trade
secret information that has been or will be
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disclosed to him by Employer, or which he has learned or will learn of by virtue
of employment with Employer, excluding information which Employee can establish
was already known to him or which becomes public through no fault of Employee or
which is obtained from another lawful source.
B. Employee hereby agrees not to use such information for his own
benefit or to disclose or to use such information for the benefit of others,
during the term of his employment, and for a period of three years after
termination of employment, without the written consent of Employer, until such
information shall become public knowledge.
Employee acknowledges that all lists, books, records,
literature, products and any other materials owned by Employer or its affiliates
or used by them in connection with the conduct of their business, shall at all
times remain the property of Employer and its affiliates and that upon
termination of Employee hereby agrees to surrender to Employer and its
affiliates all such lists, books, records, literature, products and other
materials immediately thereupon.
C. Employee hereby agrees, for a period of three (3) years
following termination for any reason, not to solicit or endeavor in any manner
to entice away, any other person, who was an employee of the employer during his
period of service with Employer.
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D. Employee agrees to communicate to Employer promptly, in
writing, all inventions, discoveries and improvements, whether or not
patentable, which Employee may conceive or make, either solely or jointly with
others, in the Employer's stated business fields and related product areas,
during the term of this employment.
E. Employee hereby agrees to take whatever reasonable steps are
requested by Employer to secure patent or other legal protection on such
inventions, discoveries and improvements in any and all countries. The Employer
will own the patents. It is understood by and between the parties that all
necessary costs of making and securing such patents shall be paid for solely by
Employer.
9. COVENANT NOT TO COMPETE:
A. Employee hereby agrees that he will not, during the term of
his full time employment by Employer, and for a period of three years after
Termination of employment, engage in any business or perform any service,
directly or indirectly, in competition with the business of Employer or any of
its affiliates within the United States and Canada, or have any interest,
whether as proprietor, partner, major stockholder (greater than 50%), principal,
agent, director or officer in any enterprise which shall so engage.
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B. In furtherance of the foregoing, and not in limitation
thereof, Employee hereby agrees, during the period of non-competition referred
to in subparagraph A above, not to directly or indirectly solicit or service in
any way, on behalf of himself or on behalf of or in conjunction with others, for
any image technology product or service, any client or customer, or prospective
client or customer, who has been solicited or serviced by Employer or any
affiliate of Employer as long as Employer, its affiliates and/or successors, are
in existence.
C. If any Court shall determine that the duration or geographical
limits or any restriction contained in this paragraph is unenforceable, it is
the intention of the parties that the restrictive covenant set forth herein
shall not thereby be terminated, and shall be amended as determined by the Court
to the extent required to render it valid and enforceable.
D. Employee acknowledges that he is being paid additional
consideration in the form of fifteen thousand (15,000.00) dollars by IMATEC.
10. REMEDIES OF EMPLOYER:
Employee acknowledges that the restrictions contained in
paragraphs 8 and 9 of this Agreement are a reasonable and necessary protection
of the legitimate interests of Employer, that any violation of them would cause
substantial injury to Employer, and that Employer would not have entered into
this Agreement with Employee without receiving the additional consideration of
Employee binding himself to said restrictions. In the event of any violation of
the said restrictions, Employer shall be entitled, in addition to any other
remedy, to preliminary and permanent injunctive relief.
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11. IMPEDIMENT:
A. Employee hereby represents, warrants and agrees that his
execution and delivery of this Agreement and performance of his duties and
obligations hereunder will not violate the provisions of any employment, trade
secret, patent, non-competition or other agreements, oral or written, court
order or instrument to which Employee is a party or is bound, or result in a
breach of or constitute a default under any of the same.
B. Employee hereby agrees to comply promptly with any reasonable
requests made from time to time by the Board of Directors or President of
Employer for full disclosure of any agreements, court orders or instruments
described in subparagraph A above and any other business activities engaged in
by Employee during the term of his employment hereunder, involving any
agreements made by Employee concerning any agreements made from the date of this
agreement until its expiration. Employee affirms that he is not aware of any
previous agreements which would contradict the terms of this contract.
12. SEVERABILITY:
If any provision of this Agreement shall be determined, by a
court of law or equity having jurisdiction, to be unenforceable, void, or
unreasonable, all other provisions of this Agreement shall be complied with as
if such unenforceable or void provision did not exist.
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13. CONSENT TO JURISDICTION:
Each party irrevocably submits to the jurisdiction of any
court in the county of New York. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
14. MISCELLANEOUS:
A. The Corporation shall indemnify the Employee in his capacity
as an Officer to the broadest extent allowable pursuant to Federal, State and
local law.
B. In the event any suit or other action is commenced with
respect to the interpretation or enforcement of any provision of this Agreement,
the prevailing party shall be entitled, in addition to any other sums to which
such party may be entitled, to recover from the other party the reasonable fees
and disbursements of counsel retained to investigate and pursue such matter.
15. NOTICE:
All notices required to be given under the terms of this
Agreement shall be in writing, shall be effective upon receipt, and shall be
delivered to the addressee in person or mailed by certified mail, return receipt
requested.
If to Employer, addressed to:
IMATEC, LTD.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
If to Employee, addressed to:
Xxxxx X. Xxxxx, addressed to:
00 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
or to such other address as a party shall have designated for
notices to be given to him or it by notice given in accordance with this
paragraph.
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16. BENEFIT:
This Agreement shall inure to and be binding upon the parties
hereto, the successors and assigns of Employer and the heirs and personal
representatives of Employee.
17. WAIVER:
The waiver by either party of any breach or violation of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach or violation hereof.
18. GOVERNING LAW:
This Agreement has been negotiated and executed in the State
of New York and the law of that state shall govern its construction and
validity.
19. ENTIRE AGREEMENT:
This Agreement contains the entire Agreement between the
parties hereto. No change, addition or amendment shall be made except by written
agreement signed by the parties hereto.
IN WITNESS WHEREOF, the parties have hereunto executed this
Agreement on the day and year first above written.
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By IMATEC, Ltd.
/s/ Xx. Xxxxxx Xxxxxx
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Xx. Xxxxxx Xxxxxx
President
Witnessed by /s/ Xxxxx Xxxxxxx Date: 9/24/96
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Witnessed by Date:
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/s/ Xxxxx X. Xxxxx
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By: Xxxxx X. Xxxxx
Witnessed by /s/ Xxxxx Xxxxxxx Date: 9/24/96
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Witnessed by Date:
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SCHEDULE 1.
COMPENSATION
Employee shall receive the following as long as Employee is an
employee of Employer in the positions described in paragraph 1 above,
I. An annual salary of $95,000, paid monthly, on the last day of each
month. Eighty thousand ($80,000.00) dollars of which is attributable to
standard salary and fifteen thousand ($15,000.00) dollars of which is payment
for the covenant not to compete.
II. Benefits as described in Schedule 2 below.
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SCHEDULE 2.
BENEFITS
Employee shall receive from the Employer the following
benefits, as long as the Employee is a full time employee of Employer:
o Paid health insurance premiums for Employee and family.
o Paid Director and Officer liability insurance.
o Paid fifteen (15) days, vacation and personal days per
full year, and the customary holidays in New York City.
Only in case of Termination, Unused vacation time,
proportional to the duration of employment, will be
compensated for.
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