Exhibit 10.1
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into by and between
J. Xxxxx Xxxxxxx (the "Executive") and REFAC, a Delaware corporation (the
"Company") as of June 20, 2005 (the "Commencement Date").
WHEREAS, the Company desires to provide for the service and employment
of the Executive with the Company and the Executive wishes to perform services
for the Company, all in accordance with the terms and conditions provided
herein.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, the Executive and the Company hereby agree as follows:
Section 1. EMPLOYMENT. The Company does hereby employ the Executive
and the Executive does hereby accept employment as the President and Chief
Operating Officer of the Company. The Executive shall have all the duties,
responsibilities and authority attendant to the position of Chief Operating
Officer and shall render services consistent with such position on the terms
set forth herein and shall report to the Chief Executive Officer of the
Company. Such duties, responsibilities and authority shall include and extend
to the operations of the Company and its present or hereinafter formed or
acquired subsidiary corporations or any other entity which it controls. In
addition, the Executive shall have such other executive and managerial powers
and duties with respect to the Company as may reasonably be assigned to him by
the Board of Directors (the "Board") to the extent consistent with his position
and status as set forth herein. The Executive agrees to devote all of his
working time and efforts to the business and affairs of the Company, subject to
periods of vacation and sick leave to which he is entitled, and shall not
engage in activities that substantially interfere with such performance.
Should the Company promote the Executive to Chief Executive Officer,
the Executive agrees to accept such position and change in his title and
duties. In such event, the Executive will also be elected to the Board and,
subject to the shareholder vote, shall continue to serve on the Board during
the balance of his employment hereunder. Executive shall not receive additional
compensation for such Board service.
Section 2. TERM OF AGREEMENT. Subject to Section 5 hereof, the term
(the "Term") of this Agreement shall commence on the Commencement Date and
shall continue for a period of two (2) years (the "Initial Term"); provided
that, upon expiration of the Initial Term, the Term shall be automatically
extended for successive one-year periods (each such one-year period, the then
current Term) commencing in each case on the anniversary of the Commencement
Date, unless the Executive or the Company notifies the other in writing at
least ninety (90) days prior to the next following anniversary of the
Commencement Date of an intention to terminate this Agreement.
Section 3. LOCATION. The Executive shall be based initially at the
Company's corporate offices in Fort Xxx, New Jersey. However, the Company is
presently engaged in discussions to acquire U.S. Vision, Inc. ("USV") which has
its corporate offices in Glendora, New Jersey and OptiCare Health Systems, Inc.
("OptiCare"), which has its corporate offices in Waterbury, Connecticut. Both
USV and OptiCare are affiliates of the Company. If such discussions result in
the Company's acquisition of USV, the Executive has expressed a preference to
work out of a location near to or at USV. The Company agrees that if such
location is consistent with its strategic plan, as approved by the Board, the
Executive may relocate his office to such a site provided that he shall work
out of the corporate offices in Fort Xxx, New Jersey as often as necessary to
maintain a close working relationship with the Company's other senior executive
officers and controlling stockholder.
Section 4. COMPENSATION.
(a) BASE SALARY. Effective as of the Commencement Date, the
Company shall pay the Executive a base salary ("Base Salary") at an initial
rate of $350,000 per year, payable in accordance with the Company's policies
relating to salaried employees, but no less frequently than monthly. In the
event that the Executive is promoted to the position of Chief Executive
Officer, then the Board shall review the Base Salary and, in its sole and
absolute discretion, may approve such increase (if any) as it deems
appropriate.
(b) ANNUAL BONUS.
(i) Commencing with the Company's fiscal year ending
December 31, 2006, the Executive shall be eligible to receive a
performance-based annual cash bonus based on the achievement of corporate
goals approved by the Board or a committee thereof and set forth in the
Company's strategic plan and budget, as approved by the Board (the "Annual
Bonus"). The Executive's target Annual Bonus shall be equal to fifty
percent (50%) of his then current Base Salary with opportunity for an
additional payment, as determined by the Board or a committee thereof, if
target goals are exceeded. To the extent consistent with the Company's
compensation policy at the time of pay-out of any annual bonus, a portion
of the Executive's annual bonus shall be paid in the form of equity, as
determined by the Board in its sole discretion. Payment of any Annual
Bonus shall be made by the Company to the Executive within thirty (30)
days after the date on which the Company files its Form 10-K with the
Securities and Exchange Commission.
(ii) In the event of a termination of the Executive's
employment without Cause, for Good Reason or as a result of his death or
Disability (in each case, as defined in Section 5 hereof), the Executive
shall be entitled to receive a pro-rated Annual Bonus based on the number
of days that the Executive was employed by the Company during the fiscal
year to which such Annual Bonus relates; provided, however, that the Board
may, in its sole discretion, adjust the amount payable to the Executive
based on its assessment of the Executive's contribution to the achievement
of target performance during such fiscal year. Subject to the discretion
of the Board, payment by the Company of any Annual Bonus shall be made to
the Executive within thirty (30) days after the date on which the Company
files its Form 10-K with the Securities and Exchange Commission,
irrespective of whether the Executive is then employed by the Company at
such time.
(c) SIGNING BONUS. The Company shall pay the Executive
$7,000 as a signing bonus.
(d) EQUITY PARTICIPATION. As of the Commencement Date, the
Executive shall be granted options to purchase 150,000 shares of Company common
stock (the "Options") governed by the terms and provisions of the Company's
2003 Stock Incentive Plan (the "Plan") and a stock option agreement to be
entered into by and between the Company and the Executive (the "Stock Option
Agreement") in accordance with the terms set forth in this Agreement. The
Options shall have an exercise price equal to fair market value of the
Company's common stock on the Commencement Date and shall vest and become
exercisable with respect to one-third of the Options on each of the
Commencement Date and the first and second anniversaries of the Commencement
Date, subject to accelerated vesting and forfeiture as set forth in this
Agreement, the Option Agreement and the Plan. The Options shall have a term of
five (5) years unless terminated earlier as set forth in this Agreement, the
Option Agreement and the Plan. The Options are intended to qualify as an
incentive stock options within the meaning of the Internal Revenue Code of
1986, as amended (the "Code"), to the maximum extent permitted under the Code.
(e) FRINGE BENEFITS.
(i) General. The Executive shall be entitled to participate
in or receive benefits under any employee benefit plan or arrangement now
or in the future made available by the Company generally to its executive
employees, subject to and on a basis consistent with the terms, conditions
and overall administration of such plans and arrangements, including but
not limited to health insurance and life insurance benefits. During the
Term, the Company shall provide the Executive with an automobile with a
maximum monthly lease payment of $900.
(ii) Vacation. The Executive shall be entitled to take four
(4) weeks of paid vacation per calendar year, prorated for any portion
thereof, and to all paid holidays given by the Company in accordance with
the Company's regular paid holidays policy.
(iii) Temporary Housing. The Executive currently resides in
St. Louis, Missouri area and until such time as the Executive has
relocated, but, in no event more than six (6) months, the Company shall
provide the Executive with corporate housing in New Jersey as mutually
agreed upon between the parties within a reasonable commuting distance to
the Company's corporate office in Fort Xxx, New Jersey.
(f) REIMBURSEMENTS.
(i) Business Expenses. The Company shall promptly reimburse
the Executive for all direct expenses incurred by the Executive in the
performance of his duties under this Agreement, including all reasonable
travel expenses, provided that such expenses are incurred and accounted
for in accordance with the Company's policies and procedures.
(ii) Relocation Costs. The Company shall reimburse the
Executive for actual costs directly related to his relocation from the
greater St. Louis, Missouri area to either the Fort Xxx or the greater
Philadelphia area, as the case may be, in an amount up to $75,000,
provided that such expenses are accounted for in accordance with the
Company's policies and procedures. The Company agrees to treat the moving
reimbursement as a tax-free fringe benefit to the extent permitted under
Section 132 of the Code.
Section 5. TERMINATION.
(a) NOTICE OF TERMINATION.
(i) "Notice of Termination" shall mean a notice that shall
indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment
under the provisions so indicated.
(ii) Any purported termination of the Executive's employment
by the Company or by the Executive shall be communicated by written Notice
of Termination to the other party hereto in accordance with Section 9
hereof.
(b) DATE OF TERMINATION. Upon the Date of Termination, the Term
shall expire. "Date of Termination" shall mean:
(i) if the Executive's employment is terminated because of
death, the date of the Executive's death, or
(ii) if the Executive's employment is terminated for any
other reason, the date specified in the Notice of Termination, which shall
not be a date prior to the date such Notice of Termination is given or the
expiration of any required notice period.
(c) ACCRUED AND UNPAID BENEFITS. Following the termination of the
Executive's employment with the Company for any reason, the Executive shall
receive:
(i) any earned, but unpaid, Base Salary,
(ii) any earned, but unpaid, bonus,
(iii) the cash equivalent of any accrued, but unused,
vacation and
(iv) any accrued and vested employee benefits, subject to
the terms of the applicable employee benefit plans.
The amounts payable under subparagraphs 5(c)(i), (ii) and (iii)
shall be paid within thirty (30) days following the Date of Termination, except
that with respect to payment of any Annual Bonus, such amount shall be paid in
accordance with Section 4(b) hereof.
(d) DEATH OR DISABILITY. In the event that the Executive's
employment hereunder is terminated by reason of the Executive's death or
Disability (as defined below), the Company shall pay the amounts described in
Section 5(c) above. All outstanding stock options, whether vested or unvested,
exercisable or not exercisable, shall as of the Date of Termination, vest and
become exercisable and, subject to the terms of any plan or agreement governing
such stock options, shall remain exercisable by the Executive or the
Executive's legal representative for the remainder of the term of such stock
options and shall thereafter expire. For the purposes of this Agreement,
Disability means the Executive's inability, by virtue of physical or mental
illness or injury, to perform his regular duties on a full-time, continuous
basis for 120 consecutive days. The Executive's Disability will be established
if a qualified medical doctor selected by the parties so certifies in writing.
If the parties are unable to agree on the selection of such a doctor, each
party will designate a qualified medical doctor who together will select a
third doctor who will make the determination. The Executive will make himself
available for an examination by a doctor selected in accordance with this
paragraph (d).
(e) TERMINATION FOR CAUSE. The Company may terminate the
Executive's employment under this Agreement for Cause (as defined below) at any
time, in which event any rights of the Executive to continued employment under
the Agreement shall thereupon cease, and if the Executive shall then be a
member of the Board, he shall immediately resign from such position. Upon a
termination for Cause, the Company shall pay to the Executive the amounts
described in Section 5(c) above. As of the Date of Termination, all outstanding
unvested options to purchase Company common stock held by the Executive shall
terminate immediately.
(i) As used herein, termination for "Cause" shall mean the
occurrence of any of the following:
(A) the Executive shall have been convicted of, or
pleads guilty or nolo contendere to, a misdemeanor involving theft or
moral turpitude or any felony;
(B) the Executive shall have engaged in conduct that
constitutes gross neglect or willful gross misconduct (including
misappropriation or embezzlement of property of, or fraud with
respect to, the Company or its subsidiaries or their affiliates) with
respect to Executive's employment duties; provided, however, that for
purposes of determining whether conduct constitutes willful gross
misconduct, no act on Executive's part shall be considered "willful"
unless it is done by Executive in bad faith and without reasonable
belief that his action was in the best interests of the Company; or
(C) the Executive violates any material provision of
the Company's Code of Conduct and Ethics and/or its Code of Ethics
for Senior Financial Officers.
(ii) Notwithstanding the foregoing, the Company may not
terminate Executive's employment for Cause unless (x) a determination that
Cause exists is made and approved by a majority of the Board (excluding
the Executive in the event that the Executive is then a member of the
Board) and (y) Executive is given at least fifteen (15) days written
notice of the Board meeting called to make such determination and, if
curable, an opportunity to cure during such notice period.
(f) TERMINATION OTHER THAN FOR CAUSE. The Company may terminate
the Executive's employment under this Agreement without Cause at any time, in
which event any rights of the Executive to continued employment under the
Agreement shall thereupon cease. In the event of such a termination without
Cause, the Executive shall be entitled to receive a lump sum payment on the
Date of Termination equal to the amount of Base Salary then in effect that the
Executive would have received had he remained employed for the remainder of the
Term. The Executive shall also be entitled to receive continued health and
medical benefits until the earlier of (i) the expiration of the Term or (ii)
the time at which the Executive becomes eligible to receive health and medical
benefits from a subsequent employer. In addition, the Company shall pay to the
Executive the amounts set forth in Section 5(c) hereof. All outstanding stock
options, whether vested or unvested, exercisable or not exercisable, shall as
of the Date of Termination, vest and become exercisable and, subject to the
terms of any plan or agreement governing such stock options, shall remain
exercisable by the Executive for the remainder of the term of the stock option
and shall thereafter expire.
(g) TERMINATION BY THE EXECUTIVE.
(i) In the event that the Executive terminates his
employment hereunder without Good Reason, (A) any outstanding unvested
stock options shall expire and terminate on the Date of Termination, (B)
any vested stock options shall remain exercisable for a period of ninety
(90) days following the date of Termination, subject to the terms of any
plan or agreement governing such stock options and (C) the Executive shall
be entitled to receive only the amounts set forth in Section 5(c) above ;
provided, however, that such stock options shall not expire or terminate
if Executive is then a member of the Board and continues to serve as a
member of the Board.
(ii) The Executive shall have the right to terminate his
employment for Good Reason (as defined below). In the event that the
Executive terminates his employment for Good Reason, he shall be entitled
to receive a lump sum payment on the Date of Termination equal to the
amount of Base Salary then in effect that the Executive would have
received had he remained employed for the remainder of the Initial Term.
The Executive shall also be entitled to receive continued health and
medical benefits until the earlier of (i) the expiration of the Term or
(ii) the time at which the Executive becomes eligible to receive health
and medical benefits from a subsequent employer. In addition, the Company
shall pay to the Executive the amounts set forth in Section 5(c) hereof.
All outstanding stock options, whether vested or unvested, exercisable or
not exercisable, shall as of the Date of Termination, vest and become
exercisable and, subject to the terms of any plan or agreement governing
such stock options, shall remain exercisable by the Executive for the
remainder of the term of the stock option and shall thereafter expire.
(iii) "Good Reason" shall mean any of the following actions
or failures to act, but in each case only if it occurs while the Executive
is employed by the Company and then only if it is not consented to by the
Executive in writing:
(A) a material adverse change in the Executive's
title, duties or responsibilities including the assignment to the
Executive of any duties that are materially inconsistent with his
status in his then current position as Chief Operating Officer or, if
applicable, Chief Executive Officer of the Company;
(B) a reduction by the Company in the Executive's Base
Salary;
(C) a Change of Control (as defined in the Plan),
provided that this Section 5(g)(iii) shall not apply to any Change of
Control in which the Executive continues to be employed by the
Company in accordance with the terms of this Agreement after the
Change of Control; or
(D) a material breach of this Agreement by the
Company.
For purposes of this definition, none of the actions
described in clauses (A) through (D) above shall constitute "Good
Reason" with respect to the Executive if it was an isolated and
inadvertent action not taken in bad faith by the Company and if it is
remedied by the Company within 30 days after receipt of written
notice thereof given by the Executive (or, if the matter is not
capable of remedy within 30 days, then within a reasonable period of
time following such 30 day period, provided that the Company has
commenced such remedy within said 30 day period); provided that "Good
Reason" shall cease to exist for any action described in clauses (A)
through (D) above on the 60th day following the later of the
occurrence of such action or the Executive's knowledge thereof,
unless the Executive has given the Company written notice thereof
prior to such date.
(h) RELEASE OF EMPLOYMENT CLAIMS. The Executive agrees, as a
condition to receipt of the payments and benefits provided for in sections 5(f)
and (g) hereof, that he will execute a release agreement, releasing any and all
claims arising out of the Executive's employment or termination thereof (other
than enforcement of this Agreement and the Executive's rights under any of the
Company's incentive compensation and employee benefit plans and programs to
which he is entitled under this Agreement). Such release agreement shall be
negotiated in good faith by the parties.
Section 6. CONFIDENTIALITY; NON-COMPETITION; NON-SOLICITATION;
INTELLECTUAL PROPERTY.
(a) CONFIDENTIALITY. As a senior executive officer and, if
applicable, director of the Company, the Executive will be privy to non-public
information generally regarded as confidential and often proprietary with
respect to the Company and its subsidiaries and affiliates, including, without
limitation, their business relationships, negotiations and past, present and
prospective activities, methods of doing business, know-how, trade secrets,
data, formulae, customer lists and all papers, resumes and records (including
computer records) of the documents containing such information (hereinafter
collectively referred to as the "Confidential Information"). Notwithstanding
the foregoing, it is agreed that Confidential Information does not include
information regarding the Executive's own compensation and benefits nor
information that became generally available to the public other than as a
result of a disclosure by the Executive.
(i) The Executive acknowledges that in his employment with
the Company, he will occupy a position of trust and confidence. The
Executive shall not, except as may be required to perform his duties
hereunder or as required by applicable law, without limitation in time or
until such information shall have become public other than by the
Executive's unauthorized disclosure, disclose to others or use, whether
directly or indirectly, any Confidential Information.
(ii) The Executive acknowledges that all Confidential
Information is specialized, unique in nature and of great value to the
Company and its subsidiaries, and that such Confidential Information gives
the Company and its subsidiaries a competitive advantage. The Executive
agrees to deliver or return to the Company, at the Company's request at
any time or upon termination or expiration of his employment or as soon
thereafter as possible, all documents, computer tapes and disks, records,
lists, data, drawings, prints, notes and written information (and all
copies thereof) furnished by or on behalf of or for the benefit of the
Company and its subsidiaries or their affiliates or prepared by the
Executive during the term of his employment by the Company, but excluding
documents relating to the Executive's own compensation and benefits.
(b) NON-COMPETITION. During the Executive's employment with the
Company and during the one (1) year period commencing on the Date of
Termination, if any, or the expiration of the Term, the Executive shall not,
directly or indirectly, whether as owner, consultant, employee, partner,
venturer, agent, through stock ownership, investment of capital, lending of
money or property, rendering of services, or otherwise, compete with the
Company or any of its affiliates or subsidiaries in any business in which any
of them is engaged or developing while the Executive is employed with Company
(such businesses are hereinafter referred to as the "Business"), or assist,
become interested in or be connected with any corporation, firm, partnership,
joint venture, sole proprietorship or other entity which so competes with the
Business. This non-competition restriction shall only apply to a geographic
area in which the Company or its affiliates and subsidiaries were engaged, or
had specific plans to engage, at the time of termination.
(c) NON-SOLICITATION OF HOST STORES AND CUSTOMERS. During the
Executive's employment with the Company and during the two (2) year period
commencing on the Date of Termination, if any, or the expiration of the Term,
the Executive shall not, directly or indirectly, influence or attempt to
influence the host stores in which the Company or any of its subsidiaries
operate or any customer, consultant or supplier of the Company or any of its
subsidiaries or their affiliates to divert their business to any business,
individual, partner, firm, corporation or other entity that is then a direct
competitor of the Company or its subsidiaries or their affiliates or has plans
to so compete (each such competitor or prospective competitor, a "Competitor of
the Company"); provided, however, that if the Executive is employed by
customers or suppliers of the Company following his termination of employment
and such employment does not violate Section 6(b) hereof, the normal execution
of his duties in connection with such employment shall not constitute a
violation of this Section 6(c).
(d) NON-SOLICITATION OF EMPLOYEES, CONSULTANTS AND ADVISERS.
(i) The Executive recognizes that he will possess
confidential information about other employees of the Company and its
subsidiaries or their affiliates relating to their education, experience,
skills, abilities, compensation and benefits, and interpersonal
relationships with customers of the Company and its subsidiaries or their
affiliates.
(ii) The Executive recognizes that he will also possess
confidential information about consultants and advisers to the Company and
its subsidiaries or their affiliates relating to their experience, skills,
abilities and their professional relationships with the Company and its
subsidiaries or the affiliates.
(iii) The Executive agrees that, during the Executive's
employment with the Company and during the two (2) year period commencing
on the Date of Termination he will not, directly or indirectly, solicit or
recruit any employee, consultant or adviser of the Company or its
subsidiaries or their affiliates for the purpose of being employed, or
retained as the case may be, by him or by any Competitor of the Company on
whose behalf he is acting as an agent, representative or employee and that
he will not convey any such confidential information or trade secrets
about other employees, consultants or advisers of the Company and its
subsidiaries or their affiliates to any other person.
(e) The provisions of subparagraphs 6(b), (c) and (d) hereof
shall not apply if the Executive is terminated without Cause or for Good
Reason.
(f) INTELLECTUAL PROPERTY. The Executive shall disclose promptly
and in writing to the Company all inventions, creative works and any other
intellectual property, whether or not patentable or copyrightable, conceived or
created solely or jointly by the Executive during the period of his employment
which relate to the business of the Company, and the Executive shall assign all
of his interest in them to the Company. The Executive shall execute all papers
at the Company's expense, which the Company shall deem necessary to apply for
and obtain domestic and foreign patents and copyright registrations, and to
protect and enforce the Company's interest in them. These obligations shall
continue beyond the period of the Executive's employment with respect to
inventions or creations conceived or made by the Executive alone or in
conjunction with other employees or consultants of the Company or its
subsidiaries or their affiliates during the period of his employment.
(g) REMEDIES. In the event of a breach or threatened breach of
this Section 6, the Executive agrees that the Company shall be entitled to
apply for injunctive relief in a court of appropriate jurisdiction to remedy
any such breach or threatened breach, the Executive acknowledging that damages
would be inadequate and insufficient.
(h) SURVIVAL OF PROVISIONS. The obligations contained in this
Section 6 shall, to the extent provided in this Section 6, survive the
termination or expiration of the Executive's employment with the Company and,
as applicable, shall be fully enforceable thereafter in accordance with the
terms of this Agreement. If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 6 is excessive
in duration or scope or is unreasonable or unenforceable under the laws of that
state, it is the intention of the parties that such restriction may be modified
or amended by the court to render it enforceable to the maximum extent
permitted by the law of that state.
Section 7. NO VIOLATION OF THIRD-PARTY RIGHTS.
(a) The Executive hereby represents, warrants and covenants to
the Company that the Executive:
(i) shall not, in the course of his employment with the
Company, infringe upon or violate any proprietary rights of any third
party (including, without limitation, any third party confidential
relationships, patents, copyrights, trade secrets or other proprietary
rights);
(ii) is not a party to any agreements with third parties
that prevent him from fulfilling the terms of employment and the
obligations of this Agreement or which would be breached as a result of
his execution of this Agreement; and
(iii) agrees to respect any and all valid obligations which
he may now have to prior employers or to others relating to confidential
information, inventions or discoveries which are the property of those
prior employers or others, as the case may be.
(b) If the Executive is in breach of any of the foregoing
representations, warranties and covenants and a court of competent jurisdiction
issues a final order (not including a temporary restraining order or other
order subject to interlocutory appeal) precluding the Executive from performing
his duties hereunder, the Company shall be entitled to terminate this Agreement
and treat the Executive as if he were terminated for Cause.
Section 8. WITHHOLDING. The Company shall make such deductions and
withhold such amounts from each payment made to the Executive hereunder as may
be required from time to time by law, governmental regulation or order.
Section 9. NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be given by hand, facsimile or
first-class mail, certified or registered with return receipt requested, and
shall be deemed to have been duly given upon delivery or three (3) days after
mailing or twenty-four (24) hours after transmission of a facsimile to the
respective persons named below:
(a) If to the Company:
REFAC
Xxx Xxxxxx Xxxxx - Xxxxx 000
Xxxx Xxx, XX 00000
Attn: Chairman
If to the Executive, at the address for the
Executive then on file with the Company:
With a copy to:
Xx. Xxxxxxx X. Xxxxx Xxxx, Xxxxxx & Parks,
LLP 0000 XX Xxxxx 000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Either party may change such party's address for notices by notice duly given
pursuant hereto.
Section 10. DISPUTE RESOLUTION; ATTORNEYS' FEES. The Company and the
Executive agree that any dispute arising as to the parties' rights and
obligations hereunder, other than with respect to Section 6 hereof, shall be
resolved by binding arbitration in accordance with the rules of the American
Arbitration Association for resolution of employment disputes then in effect
and/or commercial disputes. Each party shall have the right, in addition to any
other relief granted by such arbitrator (or by any court with respect to relief
granted with respect to Section 6 hereof), to reasonable attorneys' fees based
on a determination by the arbitrator (or, with respect to Section 6 hereof, the
court) of the extent to which each party has prevailed as to the material
issues raised the dispute.
Section 11. GOVERNING LAW. This Agreement and the legal relations thus
created between the parties hereto shall be governed by and construed under and
in accordance with the laws of the State of Delaware, without regard to its
conflicts of law principles.
Section 12. ENTIRE AGREEMENT; TERMINATION OF PRIOR AGREEMENTS. This
Agreement, collectively with the Stock Option Agreement, the Plan and the Side
Letter by and between the Company and the Executive relating to the Executive's
former employment, contain the entire understanding of the parties relating to
the employment of the Executive. This Agreement terminates and supersedes any
and all prior agreements and understandings between the parties with respect to
the Executive's employment and compensation by the Company.
Section 13. WAIVER; MODIFICATION. Failure to insist upon strict
compliance with any of the terms, covenants or conditions hereof shall not be
deemed a waiver of such term, covenant or condition, nor shall any waiver or
relinquishment of, or failure to insist upon strict compliance with, any right
or power hereunder at any one or more times be deemed a waiver or
relinquishment of such right or power at any other time or times. This
Agreement shall not be modified in any respect except by a writing executed by
each party hereto.
Section 14. ASSIGNMENT; SUCCESSORS. This Agreement is personal in its
nature and the Executive shall not assign or transfer this Agreement or any
rights or obligations hereunder. In the event of the merger, consolidation,
transfer or sale of all or substantially all of the assets of the Company with
or to any other individual or entity or any similar event, this Agreement
shall, subject to the provisions hereof, be binding upon and inure to the
benefit of such successor and such successor shall discharge and perform all
the promises, covenants, duties and obligations of the Company hereunder.
Section 15. SEVERABILITY. Except as provided in Section 6(g) hereof,
in the event that a court of competent jurisdiction determines that any portion
of this Agreement is in violation of any statute or public policy, only the
portions of this Agreement that violate such statute or public policy shall be
stricken. All portions of this Agreement that do not violate any statute or
public policy shall continue in full force and effect. Furthermore, any court
order striking any portion of this Agreement shall modify the stricken terms as
little as possible to give as much effect as possible to the intentions of the
parties under this Agreement.
Section 16. HEADINGS; INCONSISTENCY. Section headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose. In the event of any
inconsistency between the terms of this Agreement and any form, award, plan or
policy of the Company, the terms of this Agreement shall control.
Section 17. COUNTERPARTS AND FACSIMILE SIGNATURE. This Agreement may
be executed in two or more counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument. In the event that any signature is delivered via facsimile or
e-mail transmission, such signature shall create a valid and binding obligation
of the party executing (or on whose behalf such signature is executed) with the
same force and effect as if such facsimile or digital signature page were an
original signature.
Section 18. REPRESENTATION BY COUNSEL; INTERPRETATION. Each party
acknowledges that it has had the opportunity to be represented by counsel in
connection with this Agreement. Any rule of law or any legal decision that
would require interpretation of any claimed ambiguities in this Agreement
against the party that drafted it has no application and is expressly waived.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Executive has hereunto signed
this Agreement on the date first above written.
REFAC
/s/ Xxxxxx X. Xxxxxxx
------------------------
By: Xxxxxx X. Xxxxxxx
Title: Chief Exectutive Officer
EXECUTIVE
/s/ J. Xxxxx Xxxxxxx
------------------------
J. Xxxxx Xxxxxxx
